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                                   2015 PA Super 67

IN THE INTEREST OF: C.R., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: C.R., A MINOR

                                                      No. 1166 EDA 2014


             Appeal from the Dispositional Order February 10, 2014
                In the Court of Common Pleas of Monroe County
              Juvenile Division at No(s): CP-45-JV-0000016-2013

IN THE INTEREST OF: C.R., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: C.R., A MINOR

                                                      No. 1586 EDA 2014


               Appeal from the Dispositional Order April 23, 2014
                In the Court of Common Pleas of Monroe County
                 Juvenile Division at No(s): CP-45-JV-0000016


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

OPINION BY MUNDY, J.:                                 FILED APRIL 06, 2015

        Appellant, C.R., a minor, appeals from the February 10, 2014

dispositional order entered following his adjudication of delinquency for

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*
    Retired Senior Judge assigned to the Superior Court.
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involuntary deviate sexual intercourse with a person who suffers from a

mental     disability,   indecent    exposure,   and   open   lewdness, 1   and   his

commitment to Diversified Treatment Alternatives (DTA) juvenile facility.

Additionally, Appellant appeals from the juvenile court’s subsequent April 23,

2014 order granting the Commonwealth’s petition for re-disposition and

placing Appellant in the Mathom House juvenile facility after Appellant was

denied admission into DTA.2 After careful review, we affirm.

        The juvenile court has summarized the relevant factual and procedural

history of this case as follows.

              An adjudication hearing was held on December 19,
              2013, where D.D., a minor victim, D.D.’s father and
              Trooper Nicholas De La Iglesia testified. The facts
              elicited at the hearing are as follows[.] In December
              2012, [Appellant] was 12 years old and D.D., the
              victim, was 9 years old. After a complaint was
              lodged, Trooper De La Iglesia conducted an
              investigation of an alleged sexual assault on a school
              bus in December 2012. Trooper De La Iglesia went
              to the home of [Appellant], where his mother was
              present. Trooper De La Igelesia read [Appellant] his
              Miranda Rights after which [Appellant] and his
              mother waived those rights and agreed to speak to
              Trooper De La Iglesia.         During the interview,
              [Appellant] admitted that he pulled down his pants
              on the school bus and told D.D. to “suck it.”
              [Appellant] stated that D.D. performed oral sex on
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1
    18 Pa.C.S.A. §§ 3123(a)(5), 3127(a), and 5901, respectively.
2
  This Court has sua sponte consolidated Appellant’s appeals as the outcome
of Appellant’s appeal at 1166 EDA 2014 necessarily implicates our
jurisdiction to review Appellant’s claims at 1568 EDA 2014. See generally
Pa.R.A.P. 513.



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              him on two separate occasions three weeks prior to
              that day. [Appellant] also related that he knew D.D.
              was mentally challenged.

                    D.D. also testified at the adjudication hearing.
              D.D. was permitted to testify by contemporaneous
              alternative methods after an in-camera-hearing.
              D.D. stated that he sits next to [Appellant] on the
              school bus. While on the bus, [Appellant], “sucked
              his weewee” and then [Appellant] asked him to “suck
              his weewee,” but he refused. D.D. then stated that
              he touched [Appellant]’s “weewee” with his hand. In
              addition, D.D.’s father testified about his son’s
              mental limitations. D.D.’s father stated that D.D. is
              mentally disabled and that D.D. was diagnosed with
              autism, bipolar disorder and oppositional defiance.
              D.D. has an Individual Educational Plan (IEP) at
              Pleasant Valley School District and he rides to school
              on a regular scheduled bus with other children.

                    At the end of the [December 19, 2013]
              hearing, [the juvenile court] adjudicated [Appellant]
              delinquent for the acts of Involuntary Deviate Sexual
              Intercourse (F-1); Indecent Exposure (M-1); and
              Open Lewdness (M-2).

Juvenile Court Opinion, 5/14/14, at 1-2.3

       Following a disposition hearing on February 10, 2014, the juvenile

court ordered Appellant placed in the custody of Monroe County Children &

Youth Agency (CYA) for placement at DTA. Juvenile Court Order, 2/12/14,

at 1. On February 18, 2014, Appellant filed a timely post-disposition motion

pursuant to Pennsylvania Rule of Juvenile Court Procedure 620(B)(1).       On


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3
  The Juvenile Court’s opinion does not contain pagination.        For ease of
review, we have assigned each page a corresponding number.



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March 20, 2014, the juvenile court denied Appellant’s post-disposition

motion and filed an opinion in support of said decision.

        On April 3, 2014, the Commonwealth filed an “Expedited Motion for

Re-Disposition[.]”4 In said motion, the Commonwealth asserted that “[o]n

March 31, 2014, [Appellant] along with his parents, visited DTA as

scheduled[,]” and that after meeting with the program supervisor and

touring the facility, “[Appellant] and his parents were obstinate and wholly

uncooperative with the treatment process.”          Commonwealth’s Expedited

Motion for Re-Disposition, 4/3/14, at ¶¶ 3-5. As a result, the DTA program

supervisor informed the Commonwealth that he felt “[Appellant]’s placement

with DTA would be detrimental to other juveniles at the facility and

unsuccessful for [Appellant] himself, and therefore rescinded DTA’s offer of

admission.”     Id. at ¶ 6.       The Commonwealth requested a re-disposition

hearing be scheduled to address the matter. Id. at ¶ 8. A hearing was held

on April 23, 2014, and on April 24, 2014, the juvenile court granted the

Commonwealth’s petition for re-disposition, and ordered that Appellant be

placed in the custody of Monroe County CYA and placed at the Mathom

House. Juvenile Court Order, 4/24/14, at 1.

        While the re-disposition motion was pending, on April 10, 2014,

Appellant filed a timely notice of appeal from the December 19, 2013

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4
    The Commonwealth’s motion was filed pursuant to Pa.R.J.C.P. 610.



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adjudication of delinquency and the juvenile court’s subsequent February 10,

2014 dispositional order. On April 11, 2014, Appellant was directed to file a

concise    statement     of   errors    complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(b).               On April 23, 2014,

Appellant timely complied, and on May 14, 2014, the juvenile court issued

its Rule 1925(a) opinion.

       Thereafter, on May 20, 2014, Appellant filed a second notice of appeal

from the juvenile court’s April 23, 2014 order granting the Commonwealth’s

motion for re-disposition. On May 22, 2014, the juvenile court adopted its

May 14, 2014 Rule 1925(a) opinion for purposes of Appellant’s appeal at

docket number 1166 EDA 2014.5

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

              [1.] Did the [juvenile] court violate Rule 1701 of the
              Pennsylvania Rules of Appellate Procedure when it
              granted the Commonwealth’s petition for re-
              disposition after … Appellant had already filed a
              notice of appeal to the Superior Court of
              Pennsylvania?

Appellant’s Brief (1166 EDA 2014) at 7.

              [2.] Where the testimony presented in the contested
              hearing established that … Appellant and Victim,
              both of whom are incapable of consenting to sexual
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5
 We note that no portion of the juvenile court’s May 14, 2014 Rule 1925(a)
opinion addresses the issue Appellant raised in his appeal at docket number
1166 EDA 2014. Additionally, the Commonwealth has filed one brief under
both docket numbers, however, the Commonwealth has also failed to
address Appellant’s sole issue raised at docket number 1166 EDA 2014.



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           activity as a result of their age, willingly took part in
           sexual experimentation, was the decision of the
           [juvenile] court to find only … Appellant delinquent of
           crimes stemming from those acts against the weight
           of the evidence, based upon insufficient evidence
           and contrary to the law?

           [3.] At the time of the disposition, did the [juvenile]
           court fail to adequately state upon the record
           reasons sufficient to justify placing … Appellant in a
           juvenile rehabilitation facility?

Appellant’s Brief (1586 EDA 2014) at 7.

     We begin by addressing Appellant’s appeal at 1166 EDA 2014,

asserting that the juvenile court violated Pennsylvania Rule of Appellate

Procedure 1701 by granting the Commonwealth’s motion for re-disposition.

Appellant’s Brief (1166 EDA 2014) at 12. Specifically, Appellant asserts that

the juvenile court “altered the disposition [of the February 10, 2014 order]

by changing the location of placement after … Appellant had already filed an

appeal.” Id.

     Rule 1701, in pertinent part, states the following.

           Rule 1701. Effect of Appeal Generally

           (a) General rule. Except as otherwise prescribed by
           these rules, after an appeal is taken or review of a
           quasijudicial order is sought, the trial court or other
           government unit may no longer proceed further in
           the matter.

           (b) Authority of a trial court or agency after
           appeal. After an appeal is taken or review of a
           quasijudicial order is sought, the trial court or other
           government unit may:




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                  (1) Take such action as may be necessary to
                  preserve the status quo, correct formal errors
                  in papers relating to the matter, cause the
                  record to be transcribed, approved, filed and
                  transmitted, grant leave to appeal in forma
                  pauperis, grant supersedeas, and take other
                  action permitted or required by these rules or
                  otherwise ancillary to the appeal or petition for
                  review proceeding.

                  (2) Enforce any order entered in the matter,
                  unless the effect of the order has been
                  superseded as prescribed in this chapter.

                                       …

Pa.R.A.P. 1701.

      In his brief, Appellant argues that Rule 1701(a) “authorizes the trial

court to take action necessary to preserve the status quo,” but that “[t]hese

exceptions do     not permit the     trial   court to    make any substantive

modifications to any order which is the subject of this appeal.” Appellant’s

Brief (1166 EDA 2014) at 12. However, pursuant to Rule 610, the juvenile

court may conduct a dispositional review hearing at any time. Specifically,

Rule 610 states, in pertinent part, as follows.

            Rule 610.       Dispositional      and      Commitment
            Review

            A. Dispositional Review Hearing. The court shall
            review its disposition and conduct dispositional
            review hearings for the purpose of ensuring that the
            juvenile is receiving necessary treatment and
            services and that the terms and conditions of the
            disposition are being met.




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                   (1) In all cases, the court shall conduct
                   dispositional review hearings at least every six
                   months.

                   (2) In all cases, the juvenile shall appear in
                   person at least once a year.

                   (3) The court may schedule a review hearing
                   at any time.

           B. Change in dispositional order. Whenever there
           is a request for a change in the dispositional order,
           other than a motion to revoke probation as provided
           in Rule 612, notice and an opportunity to be heard
           shall be given to the parties and the victim.

                   (1) The juvenile may be detained pending a
                   court hearing.

                   (2) A detention hearing shall be held within
                   seventy-two hours of the juvenile’s detention,
                   if detained.

                   (3) The juvenile shall be given a statement of
                   reasons for the discharge from a placement
                   facility or request for change in the
                   dispositional order.

                   (4) A review hearing shall be held within
                   twenty days of the discharge from the
                   placement facility or request for change in the
                   dispositional order.

                                           ….

Pa.R.J.C.P. 610.

     Accordingly,    upon   receipt   of   the   Commonwealth’s     motion   for

redisposition, the juvenile court scheduled a hearing to evaluate if the




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disposition was still serving the interest of Appellant and the protection of

society.6    The juvenile court had both the authority and obligation, under

Rule 610, to ensure that Appellant was “receiving necessary treatment and

services and that the terms and conditions of the disposition are being

met[.]”     Further, Appellant’s pending appeal would not divest the juvenile

court of its reviewing authority, as it is required to continually evaluate

events and circumstances that occur after the original disposition. Appellant

filed his notice of appeal on April 10, 2014, after the parties had been made

aware that DTA had rescinded its invitation, and after the Commonwealth

had filed a petition for re-disposition as the juvenile court’s February 10,

2014 order could no longer be enforced as entered. Instantly, the terms of

the disposition could not be met because DTA had rescinded Appellant’s

invitation; therefore, the juvenile court properly entered a new dispositional

order pursuant to Rule 610 directing Appellant be placed in Mathom House.

As a result, Appellant’s first issue fails.

       We turn now to Appellant’s two remaining issues in his appeal

docketed at 1586 EDA 2014. In his second issue, Appellant argues that the

evidence was insufficient because both Appellant and the victim are

incapable of consenting; therefore, they are equally incapable of being held
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6
  We note that the record does not contain a copy of the April 23, 2014 re-
disposition hearing.   It is the responsibility of Appellant to ensure all
necessary transcripts are included in the certified record. See generally
Pa.R.A.P. 1911(a).



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criminally liable.   Appellant’s Brief (1586 EDA 2014) at 13-14.    Appellant

further asserts that the verdict was against the weight of the evidence for

the same reason. Id. at 15-16. For the reasons that follow, we conclude

that both of Appellant’s arguments raised in his second issue lack merit.

      “In reviewing the sufficiency of the evidence, we consider whether the

evidence presented at trial, and all reasonable inferences drawn therefrom,

viewed in a light most favorable to the Commonwealth as the verdict winner,

support the jury’s verdict beyond a reasonable doubt.” Commonwealth v.

Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied,

Patterson v. Pennsylvania, 2015 WL 731963 (U.S. 2015).                      “The

Commonwealth can meet its burden by wholly circumstantial evidence and

any doubt about the defendant’s guilt is to be resolved by the fact finder

unless the evidence is so weak and inconclusive that, as a matter of law, no

probability of fact can be drawn from the combined circumstances.”

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc)

(internal quotation marks and citation omitted), appeal denied, 95 A.3d 277

(Pa. 2014). As an appellate court, we must review “the entire record … and

all evidence actually received[.]” Id. (internal quotation marks and citation

omitted). “[T]he trier of fact while passing upon the credibility of witnesses

and the weight of the evidence produced is free to believe all, part or none

of the evidence.” Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super.

2014) (citation omitted), appeal denied, 101 A.3d 102 (Pa. 2014). “Because


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evidentiary sufficiency is a question of law, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d

119, 126    (Pa. 2013) (citation omitted),      cert. denied, Diamond v.

Pennsylvania, 135 S. Ct. 145 (2014).

      Instantly, Appellant challenges his convictions for involuntary deviate

sexual intercourse with a person who suffers from a mental disability,

indecent exposure, and open lewdness, the respective statutes for which

provide, in relevant part, as follows.

            § 3123. Involuntary deviate sexual intercourse

            (a) Offense defined.--A person commits a felony
            of the first degree when the person engages in
            deviate sexual intercourse with a complainant:

                                          …

                  (5) who suffers from a mental disability which
                  renders him or her incapable of consent; or

18 Pa.C.S.A. § 3123(a)(5).

            § 3127. Indecent exposure

            (a) Offense defined.--A person commits indecent
            exposure if that person exposes his or her genitals in
            any public place or in any place where there are
            present other persons under circumstances in which
            he or she knows or should know that this conduct is
            likely to offend, affront or alarm.

Id. § 3127(a).

            § 5901. Open lewdness

            A person commits a misdemeanor of the third degree
            if he does any lewd act which he knows is likely to be

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              observed by others who would be affronted or
              alarmed.

Id. § 5901.

      In   reviewing   the   sufficiency   of   the   evidence    regarding   the

aforementioned statutes, we note that Appellant solely argues that the

Commonwealth failed to provide “testimony or evidence indicating that [the]

victim was somehow forced to take part in these acts with [Appellant] or

even that he did not want to engage in these acts.” Appellant’s Brief at 13.

Accordingly, the only element Appellant challenges on appeal is consent.

      Relying on the case of In the Interest of B.A.M., 806 A.2d 893 (Pa.

Super. 2002), Appellant asserts that while the statutes do not exclude “from

criminal liability a child less than 13 years of age who engages in sexual

activity with another child less than 13, such a result would be absurd

because children younger than 13 are deemed by the legislature to be

incapable of consenting to (or initiating) sexual activity.”     Appellant’s Brief

(1586 EDA 2014) at 14.       First, we specifically disagree with Appellant’s

interpretation of B.A.M. We note that B.A.M. does not hold that a 13-year-

old cannot be held criminally liable for initiating sexual activity; rather, it

held that one child could not be held criminally liable for the acts of two 11-

year-olds who consensually engaged in the conduct. Id. at 897. Further, in

B.A.M., the record evidence supported that the act between the two minors

was consensual based on the victim’s testimony at trial. Id. at 898 (holding

“[i]t is therefore absurd to penalize one youngster while the other faces no

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sanction for precisely the same behavior. Either both boys must be punished

… or neither can be; as the trial court definitively found, both boys were

willingly participants”).   This Court therefore concluded that the juvenile

could not be held criminally liable for IDSI with a child under what is now

Section 3123(b) or rape under what is presently Section 3121(c).

      Further, a decade after B.A.M. was decided, this Court clarified our

intended holding.

                  We acknowledge that our use of the term
            “consensual” in In re B.A.M. can be confusing and
            may appear to be in conflict. Specifically, in In re
            B.A.M. we held that “[t]here can be no legitimate
            interest in prosecuting consensual sexual activity
            between two children under 13,” but then go on to
            state that children under the age of 13 are incapable
            of consent. Appellant seeks to exploit that conflict,
            while turning the intent of our holding in In re
            B.A.M. on its head.         According to Appellant’s
            interpretation, any sexual activity between children
            under the age of 13 is not a crime.           Applying
            Appellant’s interpretation of In re B.A.M. to other
            scenarios, he would have that case determine that,
            regardless of the level of forcible compulsion used, a
            child under the age of 13 is incapable of rape. Such
            a dangerous result was certainly not our intent and is
            not supported by In re B.A.M.

                  To the contrary, we rendered the decision in In
            re B.A.M. to protect children while avoiding
            absurdities in application of our Legislature’s
            statutes. The entire basis of our holding in In re
            B.A.M. and the cases relied upon in reaching that
            decision focused on the fact that “the statutes before
            us are deliberately protective, specifically intended
            by the Legislature to shield young children from
            sexual predation by older teenagers and adults.” Id.
            at 895. As was expressly noted by this Court in In re
            B.A.M. “[o]ur appellate courts have stated

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             definitively    that  those    enactments     were
             designed to protect children from exploitation
             by their elders.” Id. at 897 (emphasis added).
             Were we to have worded our holding in In re B.A.M.
             more precisely, we would have strictly limited the
             holding to its facts wherein mutually agreed upon
             sexual activity between peers under the age of 13 is
             not a crime. ….

Commonwealth v. Bricker, 41 A.3d 872, 879-880 (Pa. Super. 2012)

(citation omitted).

        Instantly, a review of the transcripts reveals that D.D., the victim in

this case is a nine-year-old boy who “has mental retardation and he also has

a degree of autism. He’s also bipolar and [has] oppositional defiance.” N.T.,

12/19/13, at 28. D.D. was riding the bus to school when twelve-year-old

Appellant “pulled his own pants down and told [D.D.] to suck it.” Id. at 35.

Appellant told police that he had wanted oral sex and asked D.D. to perform

it on him. Id. at 35, 37. Pursuant to Section 3123(a)(5), a person commits

a felony of the first degree when the person engages in deviate sexual

intercourse with a complainant who “suffers from a mental disability which

renders him or her incapable of consent[.]” 18 Pa.C.S.A. § 3123(a)(5). This

is precisely the conduct distinguished by the Bricker Court and specifically

found    to be   beyond the scope of our holding in B.A.M.     We continue to

decline the invitation to extend B.A.M.        Accordingly, we conclude that

Appellant’s assertion that the Commonwealth failed to show the acts were

not consensual, and that Appellant was incapable of criminal liability based

on his age, must fail.

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       Appellant also asserts that the finding of the juvenile court “shocks

one’s sense of justice, and was therefore against the weight of the

evidence.”    Appellant’s Brief (1586 EDA 2014) at 16.       However, Appellant

devotes a mere two paragraphs to this argument without developing his

claim whatsoever. See id. Further, the entire basis of Appellant’s argument

contained in the two paragraphs is a reiteration of his sufficiency argument

relying on B.A.M. Generally, appellate briefs are required to conform to the

Rules of Appellate Procedure.            Pa.R.A.P. 2101.   Pennsylvania Rule of

Appellate Procedure 2119(a) requires that the argument section of an

appellate brief include “citation of authorities as are deemed pertinent.” Id.

at 2119(a).     This Court will not consider an argument where an appellant

fails to cite to any legal authority or otherwise develop the issue.

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,

Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see also, e.g., In re

Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure

to cite relevant legal authority constitutes waiver of the claim on appeal[]”)

(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013).           Therefore,

Appellant’s failure to develop said issue results in waiver.7 See id.

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7
  Even if we were to address Appellant’s claim, we would conclude the
verdict was not against the weight of the evidence. An argument that the
jury’s verdict was against the weight of the evidence concedes that the
evidence was sufficient to sustain the convictions. Commonwealth v.
Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, Lyons v.
(Footnote Continued Next Page)


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      Finally, in his last issue Appellant asserts that the juvenile court “failed

to adequately set forth reasons why [] Appellant’s placement was the least

restrictive alternative available.”              Appellant’s Brief (1586 EDA 2014).

Specifically, Appellant asserts that “the record does not demonstrate that

[the juvenile court] weighed and considered any less restrictive forms of

rehabilitation as required by [Pennsylvania] Rule                [of   Juvenile   Court

Procedure] 512D.” Id. at 18.
                       _______________________
(Footnote Continued)

Pennsylvania, 134 S. Ct. 1792 (2014).             Our Supreme Court has
admonished that “[a] new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013) (citation omitted). Instead, “the trial judge is to determine
that 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.” Id. (internal quotation marks and citation omitted). “[A]
new trial should be awarded when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice ….” Id.

      As an appellate court, it “is not [our role] to consider the underlying
question of whether the verdict is against the weight of the evidence.”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
An argument that the jury’s verdict was against the weight of the evidence
remains “[o]ne of the least assailable reasons for granting … a new trial ….”
Id. (citation omitted). “Thus, only where the facts and inferences disclose a
palpable abuse of discretion will the denial of a motion for a new trial based
on the weight of the evidence be upset on appeal.” Id. (citation omitted;
emphasis in original).

       Instantly, the evidence adduced at trial showed that Appellant, a 12-
year-old, committed conduct in the presence of D.D., a 9-year-old victim
incapable of consent, sufficient to convict him of involuntary deviate sexual
intercourse with a person who suffers from a mental disability, indecent
exposure, and open lewdness. The cumulative testimony of the witnesses at
trial corroborated D.D.’s allegations, and the trial court was free to believe
the testimony of the witnesses. See Clay, supra.



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     Rule 512 states the following.

           Rule 512. Dispositional Hearing

                                        …

           D. Court’s findings. The court shall enter its
           findings and conclusions of law into the record and
           enter an order pursuant to Rule 515. On the record
           in open court, the court shall state:

           (1) its disposition;

           (2) the reasons for its disposition;

           (3) the terms, conditions, and limitations of the
           disposition; and

           (4) if the juvenile is removed from the home:

                 (a) the name or type of any agency or
                 institution that shall provide care, treatment,
                 supervision, or rehabilitation of the juvenile,
                 and

                 (b) its findings and conclusions of law that
                 formed the basis of its decision consistent with
                 42 Pa.C.S. §§ 6301 and 6352, including why
                 the court found that the out-of-home
                 placement ordered is the least restrictive type
                 of placement that is consistent with the
                 protection of the public and best suited to the
                 juvenile’s        treatment,        supervision,
                 rehabilitation, and welfare;

Pa.R.J.C.P. 512(D).

     A review of the dispositional hearing reveals the juvenile court

considered all the factors listed in Rule 512(D) and that it found the least




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restrictive option to be sentencing Appellant to DTA.8        At sentencing the

juvenile court made the following findings.

                     These cases, juvenile cases, in general, are
              difficult. Dealing with juveniles that are as young as
              [Appellant] is, he’s - - I recognize he’s only 13 years
              old, he’s a very young man. And any time the
              [juvenile c]ourt is faced with the prospect of taking a
              young juvenile, or any juvenile for that matter, out
              of the home, that decision is not taken lightly. And I
              gave a lot of thought in this case. And I have some
              concerns about [Appellant]’s behavior in this
              particular incident for a young man. And the fact
              that he’s clearly had problems at the Pleasant Valley
              School District. According to the social summary
              report that I have reviewed, he had a history of 37
              disciplinary infractions ranging from disrespectful to
              physical confrontations. And that record essentially
              culminated with this incident, which again, I
              indicated is disturbing. The young victim in this case
              was only nine years old, a special needs student by
              all accounts.      That [Appellant] essentially took
              advantage of him in a serious manner. And then as
              a result of that, he’s expelled or suspended from
              school. He’s enrolled at Pius and apparently the
              nature of his expulsion from Pleasant Valley was
              made known to Pius at the time. But he enrolled in
              Pius and he’s been engaged in some counseling. I
              certainly recognize that. It sounds like he’s doing,
              academically, well. That things are not the same for
              [Appellant], that things are improving for him, and
              that’s a very positive sign. But it seems that there
              have been some setbacks.              You know, the
____________________________________________


8
  We note, as discussed at length above, Appellant’s dispositional order
sentencing him to DTA was amended following the Commonwealth’s petition
for re-disposition placing Appellant in the Mathom House juvenile facility
after Appellant was denied admission into DTA. Nevertheless, as Appellant’s
challenge is to the juvenile court’s findings on the record regarding the least
restrictive option being placement outside of the home, we are not precluded
from reviewing Appellant’s issue.



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J-S70029-14
J-S70030-14

          infractions for making noise in mass and not wearing
          his – wearing sneakers with his uniform can certainly
          be overlooked.         But there’s another troubling
          allegation that he was cited for bullying and teasing
          or some inappropriate conduct with a female student
          that, in and of itself, for a 13 year old probably could
          be overlooked, but given his history, and the sexual
          history for this adjudication of delinquency in this
          particular case, it gives the [juvenile c]ourt some
          added concern.        But I don’t think there’s any
          question that [Appellant] has made progress. And,
          quite frankly, I think that he’s got a very positive
          future ahead of him. He’s a young man. And I think
          things will go well for him in the future. But I think
          something more than leaving him in the present
          situation without some more intensive type of
          therapy or counseling I think the [juvenile c]ourt
          would be remiss [to] do that.

                And, again, it’s very difficult for me to place
          any student, especially a young student like
          [Appellant]. The bottom line here is what is the best
          thing for him under the circumstances. And I feel,
          given my understanding of this program, the
          Diversified Treatment Alternative Program, that I feel
          that that is the best option for [Appellant].
          Therefore, I’m going to adopt the recommendation of
          probation in this matter and I am not going to
          suspend that placement pending appeal in this
          matter.

                                     …

          [T]he [juvenile c]ourt finds that to allow [Appellant]
          to remain in the home would be contrary to the
          child’s welfare and reasonable efforts have been
          made to prevent removal of the child from the home.
          This disposition is consistent with the protection of
          the public and best suited to the treatment,
          supervision, rehabilitation and welfare of the child.

                                     …




                                   - 19 -
J-S70029-14
J-S70030-14

               Okay, [Appellant], good luck to you. This is a good
               program. I think you’re going to get a benefit out of
               it. And I think it’s going to help you. You got a long
               way to go, you’re 13, okay. You’ve got a long way
               to go, and we just want to make sure things get
               better for you and you keep improving.

N.T., 2/10/14, 14-15. The juvenile court thoroughly discussed its reasoning

and conclusion for placing Appellant outside of the home.           Accordingly,

Appellant’s final issue fails.

      Based on the foregoing, we conclude that Appellant’s issues are either

waived or devoid of merit.          Therefore, we affirm the juvenile court’s

February 10, 2014 dispositional order, and the juvenile court’s subsequent

April 23, 2014 order granting the Commonwealth’s petition for re-

disposition.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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