J-S22027-20

                                  2020 PA Super 133

    IN THE INTEREST OF: G.E.W., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: G.E.W., A MINOR                 :
                                               :
                                               :
                                               :
                                               :   No. 1873 MDA 2019

           Appeal from the Dispositional Order Entered June 13, 2019
      In the Court of Common Pleas of Luzerne County Juvenile Division at
                        No(s): CP-40-JV-0000147-2019


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

OPINION BY MURRAY, J.:                         FILED: JUNE 8, 2020

        G.E.W. (Appellant) appeals from the dispositional order entered after

the juvenile court adjudicated her delinquent of one count of sexual abuse of

children and two counts of indecent assault.1           Appellant challenges the

sufficiency of the evidence to sustain the sexual abuse of children

adjudication, as well as the denial of her suppression motion. We affirm.

        The juvenile court recounted the relevant facts:

        Detective Charles J. Balogh, Jr. testified that on March 12, 2019,
        he received an email from the National Center for Missing and
        Exploited Children and a call from the Internet Crimes Against
        Children’s Task Force’s Commander that it “had a priority two
        cybertip where a minor 8-year-old child [(Victim)] is being
        sexually exploited and/or molested.” A priority two cybertip
        means that it believes “that a child is in [imminent] danger of
        being sexually molested and/or exploited.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6312(b)(2) and 3126(a)(4) and (7).
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       He further explained “that there is a [26]-year-old male and a 17-
       year-old female [(Appellant)] that were sexually exploiting and/or
       molesting an 8-year-old . . . [c]hild victim.” He explained that the
       origin of the cybertip was reported to be from Facebook. “This
       report was generated by Facebook because the [26]-year-old . . .
       and [Appellant] were using Facebook Messenger.” “There were
       two different IP addresses, one for the alleged [26]-year-old male
       individual and [Appellant]. . . .

       Detective Balogh further testified that by using the IP address
       provided to him and the Facebook profile connected to same, he
       was able to ascertain the name, home address, date of birth, email
       addresses and school of the owner of that IP address as that of
       [Appellant] . . . . Additionally, he stated Facebook provided him
       with “excerpts of the sexually-explicit conversation between
       [Appellant] and later determined to be her co-defendant [N.H.2].
       . . . Further, Detective Balogh stated he was able to determine
       that the other co-actor was physically located in “Perryopolis,
       Pennsylvania.”

       Detective Balogh testified he read the entire conversation and
       confirmed the identity of the 8-year-old [Victim]. He determined
       the [Victim] was the niece of [Appellant] and she was visiting the
       home of [Appellant’s] mother and father . . . .

       Detective Balogh testified to the “fact that the [Appellant] was
       inappropriately touching her 8-year-old niece and specifically
       being told by her co-defendant what to do. And I could tell by
       that . . . there’s a visual, that she was providing visual access
       because the co-defendant is telling her how the body positioning
       is and what she should be doing which would indicate clearly that
       he’s seeing and she’s providing visual access to [Victim].”
       [Appellant] further recalled her niece’s “vagina being wet.”

       Detective Balogh continued to state that on March 12, 2019,
       Luzerne County Detective Daniel Yursha and he proceeded to
       [Appellant’s residence] and met the parents of [Appellant] and her
       outside the home. The detectives, [Appellant], her mom and dad,
       “moved into the residence, inside the kitchen area.” Detective
____________________________________________


2 Although not entirely clear from the record, it appears the 26-year-old male
uses several aliases. The juvenile court, Commonwealth and Appellant refer
to him by different names; for clarity, we refer to him as “N.H.”

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        Balogh said he “explained the cybertip in its entirety and told them
        why I was there, the purpose of my visit.”

        . . . Detective Balogh further stated after explaining they were
        there regarding a cybertip, they provided [Appellant] with
        Miranda[3] warnings and explained those rights to her and her
        parents. “Even prior to advising the defendant and her parents of
        the constitutional warnings, I explained to them we’re here from
        a cybertip which involved a minor child and explained what was
        going on and why we were there . . . I asked if we could come in.
        They said, you’re more than welcome to come in. And at that
        point, we did sit down and talk to [Appellant] and both her
        parents,” Balogh stated.        I told [Appellant] during the
        constitutional warnings she was free to stop me at any time . . .
        [s]he never asked to leave the room. Had she, I would have
        allowed it,” Detective Balogh stated. Additionally, “. . . I advised
        her she had a right to counsel right on the constitutional warning
        form which she signed, along with her parents.”

        [Appellant] “got very emotional. She was upset and she made a
        comment very early on that he --,” Balogh testified. “Yes she
        made the comment that he better get in trouble, too. And more
        or less she told me on numerous occasions that he’s the one who
        made her do what she did . . . [s]he admitted to not only using
        Facebook Messenger and video so that there is a – she also
        admitted to the chat conversation; specifically, when I went into
        detail about some of the things that were said, she admitted to
        those comments and those – that she in fact is the one who
        responded.”

        Balogh testified [Appellant] “told me that she did in fact lift up
        [Victim’s] shirt, exposing her breast, to provide visual access to
        her co-defendant. In addition to that, she had put her hand inside
        of her niece’s pants and underwear . . . and put her hand inside
        her vagina area.”

        On cross-examination, Detective Balogh testified that he was not
        provided the live feed of the incident. He later learned that
        Facebook did not preserve the live video. . . .”

Juvenile Court Opinion, 10/11/19, at 3-7.

____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

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       The Commonwealth filed a delinquency petition on April 25, 2019,

seeking to have Appellant adjudicated delinquent of one count of sexual abuse

of children and two counts of indecent assault. Appellant filed a suppression

motion alleging that her statement to police was unlawfully obtained because

she did not knowingly or voluntarily waive her Miranda rights. The juvenile

court, following a hearing, denied the suppression motion. At a subsequent

hearing,    the   juvenile    court   adjudicated   Appellant   delinquent   of   the

aforementioned offenses. The juvenile court entered its dispositional order

and Appellant filed a timely notice of appeal.4

       Appellant presents this Court with three issues:

       1. Did the trial court err as a matter of law or abuse its discretion
          in failing to suppress an illegally obtained statement of the
          [Appellant] in violation of her 5th and 6th Amendment of the
          United States Constitution and Article 1, § 9 of the
          Pennsylvania Constitution?

       2. Did the trial court err as a matter of law or abuse [its] discretion
          in failing to preclude the admission of the [Appellant’s] illegally
          obtained statement where the evidence produced by the
          Commonwealth failed to satisfy the corpus delicti rule?

       3. Did the Commonwealth failed [sic] to prove, beyond a
          reasonable doubt, that the [Appellant] violated 18 Pa.C.S.A. §
          6312(b)(2) in that the Commonwealth presented insufficient
          evidence to establish that the [Appellant] engaged in a
          “prohibited sexual act” as defined in 18 Pa.C.S.A. § 3101?

Appellant’s Brief at 3.


____________________________________________


4  We note that Appellant filed her brief 25 days late; although the
Commonwealth sought permission for an extension of time to file a brief, as
of this writing, no brief has been filed.

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     We first consider Appellant’s suppression claim. “When reviewing the

propriety of a suppression order, we are required to determine whether the

record supports the factual findings of the suppression court, and we are

bound by those facts and may reverse only if the legal conclusions drawn

therefrom are in error.” In the Interest of N.B., 187 A.3d 941, 945 (Pa.

Super. 2018) (en banc) (internal quotation marks omitted).             As the

Commonwealth prevailed below, we “may consider only the Commonwealth’s

evidence and so much of the evidence for the defense as remains

uncontradicted when read in the context of the record as a whole.” In re

B.T., 82 A.3d 431, 435 (Pa. Super. 2013). However, we are not bound by the

juvenile court’s legal conclusions, which we review de novo. N.B., 187 A.3d

at 945.

     Appellant alleges violation of her Miranda rights. The following legal

principles govern:

     To safeguard an uncounseled individual’s Fifth Amendment
     privilege against self-incrimination, suspects subject to custodial
     interrogation by law enforcement officers must be warned that
     they have the right to remain silent, that anything they say may
     be used against them in court, and that they are entitled to the
     presence of an attorney. Juveniles, as well as adults, are entitled
     to be apprised of their constitutional rights pursuant to Miranda.

B.T., 82 A.3d at 436.

     Once a person asserts his or her election to remain silent, the right must

be “scrupulously honored” by the authorities. Michigan v. Mosley, 423 U.S.

96, 104 (1975). “If an individual indicates in any manner, at any time prior



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to or during questioning, that he wishes to remain silent, the interrogation

must cease, and any statement taken after the person invokes his privilege

cannot be other than the product of compulsion, subtle or otherwise.”

Commonwealth v. Frein, 206 A.3d 1049, 1064 (Pa. 2019).

      “If a suspect makes a statement during custodial interrogation, the

burden is on the [Commonwealth] to show, as a prerequisite to the

statement’s admissibility in the [Commonwealth’s] case in chief, that the

defendant voluntarily, knowingly and intelligently waived his rights.” B.T., 82

A.3d at 436. In determining whether a juvenile’s waiver was valid, we analyze

the totality of the circumstances, including,

      the juvenile’s youth, experience, comprehension, and the
      presence or absence of an interested adult. Other factors to
      consider in this context also include: (1) the duration and means
      of the interrogation; (2) the juvenile’s physical and psychological
      state; (3) the conditions attendant to the detention; (4) the
      attitude of the interrogator; and (5) any and all other factors that
      could drain the juvenile’s ability to withstand suggestion and
      coercion.

N.B., 187 A.3d at 945.

      Instantly, because Appellant failed to request the transcript of her

suppression hearing, this issue is waived. “The fundamental tool for appellate

review is the official record of the events that occurred in the trial court.”

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc)

(citation omitted).   The certified record consists of “original papers and

exhibits filed in the lower court, paper copies of legal papers filed with the

prothonotary by means of electronic filing, the transcript of proceedings, if


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any, and a certified copy of the docket entries prepared by the clerk of the

lower court[.]” Pa.R.A.P. 1921. Items that are not part of the certified record

cannot be considered on appeal.         See Preston, 904 A.2d at 6.           In

Pennsylvania, we place the responsibility of ensuring that the record on appeal

is complete “squarely upon the appellant and not upon the appellate courts.”

Id., at 7 (citing Pa.R.A.P. 1931).

      With regard to transcripts, our Rules of Appellate Procedure require an

appellant to order and pay for any transcript necessary for resolution of the

issues appellant raises on appeal. See Pa.R.A.P. 1911(a). When an appellant

fails to adhere to the precepts of Rule 1911 and order all necessary transcripts,

“any claims that cannot be resolved in the absence of the necessary

transcripts or transcripts must be deemed waived for the purpose of appellate

review.” Preston, 904 A.2d at 7 (citation omitted).

      Here, our thorough review of the record indicates that the suppression

hearing was never transcribed, and Appellant, who is represented by counsel,

failed to request the transcript.      We are therefore unable to conduct

meaningful review of Appellant’s suppression issue.     Also, because Appellant

failed to request the transcript and file it with the juvenile court, we do not

find the absence of the transcript attributable to a breakdown in the judicial

process. See id., at 18 (“An appellant should not be denied appellate review

if the failure to transmit the entire record was caused by an ‘extraordinary




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breakdown in the judicial process.’”). In sum, Appellant’s suppression issue

is waived.5

       Although we find that Appellant waived her first issue, Appellant revisits

the admissibility of her confession in her second issue. Specifically, Appellant

contends that the trial court erred by considering her confession as evidence

of Appellant having committed the crime of sexual abuse of children because

the Commonwealth failed to establish the corpus delicti for that offense.

Appellant’s Brief at 15.

       The corpus delicti rule is a rule of evidence. Our standard of review on

appeals challenging an evidentiary ruling of the juvenile court is limited to a

determination of whether the court abused its discretion.

       “The corpus [delicti] . . . rule places the burden on the prosecution
       to establish that a crime has actually occurred before a confession
       or admission of the accused connecting him to the crime can be
       admitted.” “The Commonwealth need not prove the existence of
       a crime beyond a reasonable doubt as an element in establishing
       the corpus delicti of a crime, but the evidence must be more
       consistent with a crime than with [an] accident.” The corpus

____________________________________________


5 Our review of the parties’ submissions and the certified record in this case
reveals that, although Appellant cited to the notes of testimony from the
suppression hearing in her brief, she failed to include the transcript of the
proceeding in the record before us. This Court made an informal inquiry to
locate and obtain the notes of testimony as it appeared that an oversight
prevented such materials from reaching us.             Despite this, there is no
indication that Appellant requested the transcripts for the May 29, 2019
hearing and no transcript was included in the record before us. Since
Appellant did not include the transcript in the certified record, we find that she
waived appellate review of this claim. See Commonwealth v. O’Black, 897
A.2d 1234, 1238 (Pa. Super. 2006) (holding that the burden always remains
on the Appellant to ensure that the record is complete on appeal).

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      delicti, or “body of the crime,” may be proven by circumstantial
      evidence.

      Our Court has explained:

      Establishing the corpus delicti in Pennsylvania is a two-step
      process. The first step concerns the trial judge’s admission of the
      accused’s statements and the second step concerns the fact
      finder’s consideration of those statements. In order for the
      statement to be admitted, the Commonwealth must prove the
      corpus delicti by a preponderance of the evidence. In order for
      the statement to be considered by the fact finder, the
      Commonwealth must establish the corpus delicti beyond a
      reasonable doubt.

Commonwealth v. Harper, -- A.3d --, 2020 WL 1516934, at *7 (Pa. Super.

2020) (quoting Commonwealth v. Murray, 174 A.3d 1147, 1153-54 (Pa.

Super. 2017)). Simply put, the Commonwealth cannot convict a defendant

solely upon their confession. See id.

      Detective Balogh was the only witness to testify at Appellant’s

dispositional hearing.    Before the Commonwealth sought to introduce

Appellant’s confession, Detective Balogh testified that on March 12, 2019, he

received a priority two cyber tip from the National Center for Missing and

Exploited Children concerning a 26-year-old male (N.H.) instructing a 17 year-

old female (Appellant) to sexually exploit and/or molest an 8-year-old victim

(Victim).   N.T., 6/3/19, at 13.   The cybertip alleged that Appellant used

Facebook Messenger to communicate with N.H., and N.H. encouraged

Appellant to touch the Victim while she was asleep. Appellant livestreamed a

video, which muted all sound, to allow N.H. to see, in real time, what Appellant

was doing. Appellant and N.H. then used the chat component of Facebook



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Messenger to communicate, and for N.H. to instruct Appellant on where to

touch Victim. The cybertip included excerpts of the conversation, including

multiple instances of Appellant describing to N.H. how the Victim’s vagina felt.

See Cybertipline Report 47376092, 3/7/19, at 7, 9, 11.

      This evidence is consistent with a determination that Appellant sexually

abused a child. See Commonwealth v. Friend, 717 A.2d 568, 569-70 (Pa.

Super. 1998) (“The corpus delicti may be established by circumstantial

evidence.”). Thus, we conclude that the evidence was sufficient to establish

the corpus delicti for sexual abuse of children. Consequently, the juvenile

court did not abuse its discretion by denying Appellant’s motion to exclude

Appellant’s confessional statement.

      In her third and final issue, Appellant challenges the sufficiency of the

evidence to support her adjudication for sexual abuse of children under 18

Pa.C.S.A. § 6312(b)(2) (photographing/videotaping/depicting on computer or

filming sexual acts). Our standard of review is as follows:

      When considering a challenge to the sufficiency of the evidence
      following an adjudication of delinquency, we must review the
      entire record and view the evidence in the light most favorable to
      the Commonwealth.

      In determining whether the Commonwealth presented sufficient
      evidence to meet its burden of proof, the test to be applied is
      whether, viewing the evidence in the light most favorable to the
      Commonwealth and drawing all reasonable inferences therefrom,
      there is sufficient evidence to find every element of the crime
      charged. The Commonwealth may sustain its burden of proving
      every element of the crime beyond a reasonable doubt by wholly
      circumstantial evidence.



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In the Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super. 2016) (citations

omitted).

      The subsection of sexual abuse of children, under which Appellant was

adjudicated delinquent, provides:

      § 6312. Sexual abuse of children

                               *     *        *

      (b) Photographing, videotaping, depicting on computer or
      filming sexual acts.—

                               *     *        *

      (2) Any person who knowingly photographs, videotapes, depicts
      on computer or films a child under the age of 18 years engaging
      in a prohibited sexual act or in the simulation of such an act
      commits an offense.

18 Pa.C.S.A. § 6312(b)(2).     “Prohibited sexual act” is defined as “[s]exual

intercourse . . ., masturbation, sadism, masochism, bestiality, fellatio,

cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted

for the purpose of sexual stimulation or gratification of any person who might

view such depiction.” 18 Pa.C.S.A. § 6312(g). “The purpose of Section 6312

is plainly to protect children, end the abuse and exploitation of children, and

eradicate the production and supply of child pornography.” Commonwealth

v. Baker, 24 A.3d 1006, 1036 (Pa. Super. 2011).

      Appellant appears to be challenging two elements: 1) engaging in a

prohibited sexual act; and 2) depicting the act on a computer. Appellant’s




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Brief at 19-22. We first address the prohibited sexual act. In challenging this

element, Appellant argues:

      The record is devoid of any indication that the minor victim
      disclosed to authorities that she had been inappropriately touched
      or in any manner treated.          The Commonwealth, likewise,
      presented no videos or pictures, or even a record of a live video
      feed related to the minor victim and the [Appellant]. Rather, the
      Commonwealth, during the course of the adjudicatory hearing,
      relied on the interpretations of Detective Balogh of the cyber tip
      and the [Appellant’s] statement.        However, to rely on the
      interpretation of Detective Balogh, who was not offered as an
      expert, as sufficient evidence, beyond a reasonable doubt, to
      prove the current charge, required not only speculation and
      conjecture, but also unreasonable interference.

Appellant’s Brief at 20 (citations omitted).

      Appellant focuses on the credibility and reliability of Detective Balogh.

A challenge to the credibility or reliability of the Commonwealth’s witnesses

goes to the weight, not the sufficiency, of the evidence. See Commonwealth

v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (claim that the

Commonwealth’s evidence lacked credibility goes to the weight of the

evidence). Because Appellant failed to preserve a weight claim, this challenge

is waived. See Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)

(stating that a weight claim must be presented to the trial court, because

appellate courts review a trial court’s “exercise of discretion, not of the

underlying question of whether the verdict is against the weight of the

evidence”). Therefore, Appellant is not entitled to relief.

      In her second sufficiency challenge, Appellant asserts that the evidence

was insufficient to “confirm that any prohibited sexual act or nudity were


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actually depicted by video or live stream . . . .”     Appellant’s Brief at 21.

Appellant contends, “[b]ecause it cannot be concluded from the evidence at

the adjudicatory hearing what was actually depicted in a video or live stream

video or even if the same occurred, the Commonwealth cannot and did not

sustain its burden of proof.” Id.

       This Court examined a similar challenge in Commonwealth v. Levy,

83 A.3d 457 (Pa. Super. 2013). Levy challenged the “computer depiction”

element of sexual abuse of children. Levy argued that his utilization of Skype6

with the victim “did not amount to a ‘computer depiction’ for the purposes of

his convictions for sexual abuse of children . . . .” Id. at 460.

       In rejecting Levy’s challenge, this Court opined:

       When a person uses Skype, his or her computer monitor displays
       the video images of the other participant. We have little trouble
       concluding that such a display amounts to “showing” or
       “representing” an image as the common and approved usages of
       the term contemplates. We find the example attendant to
       Webster’s definition of “depict” to be particularly instructive. In
       that example, the photograph “depicts” two brothers standing in
       front of a store. The common usage of the term includes a
       physical object, the photograph, displaying a real image. We find
       little difference between analogizing this common usage of the
       term to an image, live or still, appearing on a computer screen. A
       person who looks at the picture in the example will see two
       brothers standing in front of a store. That image is “depicted” to
       the viewer. There would be no difference if the person viewed
       that image in a photograph or on a computer screen.

____________________________________________


6Like Facebook Messenger, “Skype is an internet communication service that
provides live, two-way audio and video communication.” Commonwealth v.
Levy, 83 A.3d 457, 463 (Pa. Super. 2013) (quoting Julian v. State, 319
Ga.App. 808, 738 S.E.2d 647, 649 n.4 (2013) (citation omitted)).

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Id. at 463.

      For the same reasons as those stated in Levy, we conclude that the

images projected on a computer monitor by the use of Facebook Messenger

constitute “computer depictions” for the purposes of Appellant’s sexual abuse

of children delinquency adjudication.     As such, the evidence, including the

Facebook Messenger chat transcript between Appellant and N.H. and

Appellant’s confessional statement to police, was sufficient to support the

adjudication.   See Cybertipline Report 47376092, 3/7/19, at 7, 9, 11

(Appellant describing to N.H. how Victim’s vagina feels to the touch); see also

Affidavit of Probable Cause, 4/25/19, at 3 (stating that Appellant “does admit

to putting her hands inside [Victim’s] pajamas and underwear in an attempt

to touch [Victim’s] vagina,” and “[Appellant] admitted to lifting up [Victim’s]

shirt to show [N.H.] her breast. . . .”). Accordingly, Appellant’s sufficiency

issue is meritless.

      Dispositional order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/08/2020




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