J-S85007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: S.R., A MINOR        :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
 APPEAL OF: S.R., A MINOR                 :
                                          :
                                          :
                                          :
                                          :
                                          :   No. 290 WDA 2017

             Appeal from the Order Dated December 15, 2016
   In the Court of Common Pleas of Allegheny County Juvenile Division at
                      No(s): CP-02-JV-0001638-2016

BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                                 FILED MAY 14, 2018

      S.R. appeals from the dispositional order entered on December 15,

2016, following her adjudication of delinquency for indecent assault.         We

affirm.

      The juvenile court offered the following summary of the relevant facts.

             The case initiated when a counselor filed a childline report
      on April 28, 2016, reporting that the victim, H.R., had alleged that
      a child from her neighborhood had touched her inappropriately.
      As a result of that childline, the case was referred to . . . the
      Allegheny County Police Department, [which] began investigating
      H.R.’s claims. The victim underwent a forensic interview on May
      18, 2016, at Mercy Hospital. In this interview, the victim alleged
      that she was playing outside with [Appellant] in their
      neighborhood. She reported to playing a game called “ding dong
      ditch.”1 During one of these incidents, the victim reported that
      they were hiding behind [Appellant’s] house when [Appellant]
      touched her “privates” under her underwear. She also reported
      that [Appellant] asked her to touch [Appellant’s] “privates” during
      this incident. . . . The victim reported that she told her mother
      and her counselor the next day about the incident. This report
      and subsequent childline led to the filing of the instant delinquency
      petition.
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           ______
           1 A game in which children ring doorbells and run from the

           homes before anyone can answer the door.

           In [its] case in chief, [the Commonwealth] called the victim,
     H.R., as [its] first witness. The following is a summary of her
     testimony. H.R. was seven years old at the time of her testimony
     and six when the incident occurred. H.R. testified that she had
     asked her mother for permission to play with [Appellant] before
     her mom went to bible study. Her mother agreed and H.R. went
     to [Appellant’s] neighborhood to play. The victim testified that
     the two were playing ding, dong, ditch. At some point during the
     game, the victim reported that [Appellant] had thrown a rock at
     one of the home’s windows. She reported that the two ran behind
     [Appellant’s] house after they saw a police car. After some
     hesitation, H.R. testified that [Appellant] had touched her privates
     on the day in question. H.R. also testified that [Appellant] touched
     her under her underwear and that it was skin on skin. She
     reported that she continued to play with [Appellant] after this
     incident occurred. At some point during this time, she also started
     playing with [Appellant’s] sister, A.R.          Shortly thereafter,
     [Appellant] and the victim were playing in an adjacent yard when
     she alleged that [Appellant] again touched her vagina skin to skin.
     The victim then testified that [Appellant] asked her to touch
     [Appellant’s] private parts . . . .

           The next day, the victim reported telling her mother and a
     counselor about the incidents that had occurred the night before
     with [Appellant]. During cross-examination, the child reported to
     playing with [Appellant] from 7:00[ p.m.] to 10:00[ p.m.] on a
     Wednesday. She remembered that it was warm because she was
     wearing green shorts and a short-sleeved shirt. She also said that
     [Appellant] had used one hand and that she put it underneath
     each layer of her clothing until she reached her bare skin under
     her underwear. The victim revealed that she had previously been
     “touched” by a family friend and her grandfather. The victim
     demonstrated knowledge about the nature of inappropriate
     touching. She was able to articulate the difference between being
     touched     and    being    touched   “inappropriately.”     [The
     Commonwealth] asked that the forensic interview DVD be
     admitted into evidence and viewed by the court. There was no
     objection to this request from defense counsel. The court watched
     the interview and it was admitted into evidence.


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             During her case in chief, [Appellant’s counsel] called
      [Appellant’s] eleven-year-old sister, A.R. She testified that she
      was only a few feet away from Appellant and the victim while they
      were playing on that day. She testified that she had not wanted
      to play ding, dong, ditch but instead wanted to talk to her neighbor
      and draw with chalk. She testified that she was drawing with the
      chalk for about an hour and that she observed [Appellant] and
      victim knocking on a door and then hiding near a bush on the side
      of the house. She reported having her eyes on the two for the
      entire time that she was outside talking to the neighbor and
      drawing with chalk.       A.R. also testified that she observed
      [Appellant] and the victim during the alleged rock throwing
      incident. She testified that one of the girls threw a rock at the
      window and then the police arrived. She reported that she and
      [Appellant] went into their home while her mother talked to the
      police. She testified that they went to bed after that and did not
      go back outside. A.R. also reported that she had talked to
      [Appellant] before coming into court so that she could remember
      things right and get her “story straight.” A.R. had never reported
      this information to the police or anyone else in this case.

             [Appellant’s counsel] also called [Appellant] during her case
      in chief. [Appellant] testified that the girls had been playing ding
      dong ditch and that they had been hiding behind a bush near the
      home. She reported that they hid behind the bush a number of
      times while playing the game. [Appellant] testified that they
      threw rocks up onto the porch of one of those homes. She
      reported that the resident opened the door and one of the rocks
      hit the door. The police came shortly after. After some discussion
      with the police, she reported that she remained in the house with
      her father and that her sister and mother left to see a movie.

Juvenile Court Opinion, 5/22/17, at 3-6 (footnote, unnecessary capitalization,

and some internal quotation marks omitted).

      In the subsequent delinquency petition, Appellant, who was twelve

years old at the time of the incident, was charged with conduct constituting

aggravated indecent assault. The Commonwealth later amended the petition

to include indecent assault. Following a hearing, the juvenile court concluded


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that the Commonwealth proved that Appellant committed acts of indecent

assault, and adjudicated Appellant dependent by order of December 15, 2016.

Having also determined that Appellant was in need of treatment, supervision,

or rehabilitation, the juvenile court placed Appellant on probation until further

order of court, directed that she participate in counseling, and ordered that

she pay standard court costs.

      Appellant filed a post-dispositional motion in which she contended that

the adjudication was against the weight of the evidence. The juvenile court

denied the motion without a hearing. Appellant timely filed a notice of appeal,

and both Appellant and the juvenile court complied with Pa.R.A.P. 1925.

Appellant presents the following questions for this Court’s consideration.

             I.    Is the adjudication of delinquency not supported by
      sufficient evidence in that the Commonwealth failed to prove that
      any indecent contact that occurred was done without [H.R.’s]
      consent and/or was done with the intent of arousing sexual
      desire?

             II.   Is the disposition in this case improper as the length
      of [Appellant’s] probation is indefinite and the exact costs that
      [she] is required to pay are not included in the Order, and neither
      is an inquiry into [Appellant’s] ability to pay?

Appellant’s brief at 8.

      We begin with our standard of review of dispositional orders in juvenile

proceedings. The Juvenile Act grants broad discretion to juvenile courts in

determining appropriate dispositions.       In re C.A.G., 89 A.3d 704, 709

(Pa.Super. 2014). Indeed, the Superior Court will not disturb the lower court’s




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disposition absent a manifest abuse of discretion. In the Interest of J.D.,

798 A.2d 210, 213 (Pa.Super. 2002).

      Where an appellant challenges the sufficiency of the evidence to support

the adjudication the following principles are applicable.

            When a juvenile is charged with an act that would constitute
      a crime if committed by an adult, the Commonwealth must
      establish the elements of the crime by proof beyond a reasonable
      doubt. 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.

            The facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with a
      defendant’s innocence. Questions of doubt are for the hearing
      judge, unless the evidence is so weak that, as a matter of law, no
      probability of fact can be drawn from the combined circumstances
      established by the Commonwealth.

In re V.C., 66 A.3d 341, 348–49 (Pa.Super. 2013) (citation and quotation

marks omitted).

      “A person is guilty of indecent assault if the person has indecent contact

with the complainant[ or] causes the complainant to have indecent contact

with the person . . . and: (1) the person does so without the complainant’s

consent[.]” 18 Pa.C.S. § 3126(a)(1). Indecent contact is defined as “Any


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touching of the sexual or other intimate parts of the person for the purpose of

arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

      Appellant claims that the Commonwealth failed to prove beyond a

reasonable doubt either that Appellant “ever touched H.R. inappropriately” or

that any touching was done to satisfy Appellant’s sexual desire. Appellant’s

brief at 17.    Our review of the evidence does not support Appellant’s

contentions.

      H.R. testified that she and Appellant were playing outside on a warm

Wednesday evening. N.T., 12/15/16, at 8, 14. On two occasions, while hiding

from neighbors whose doorbells they had rung, Appellant reached under H.R.’s

shorts and underwear, and used her hand and fingers to touch the part of

H.R.’s body that she uses “to go to the bathroom,” specifically “to pee.” Id.

at 18-21, 39. Additionally, Appellant requested that H.R. touch Appellant’s

“private part,” i.e., the part she uses to pee. Id. at 22.

      This Court has repeatedly affirmed convictions for indecent assault

based on similar evidence. For example, in Commonwealth v. McClintic,

851 A.2d 214, 216 (Pa.Super. 2004), rev’d on other grounds, 909 A.2d 1241

(Pa. 2006), McClintic likewise argued that the evidence failed to show that the

touching at issue, the grasping of the victim’s breast, was for the purpose of

sexual arousal rather than “an act of physical violence and intimidation.” We

disagreed, explaining as follows.

            Although the evidence indicates that [the defendant]
      intended to intimidate his victim, and initially was successful in

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      doing so, that fact did not prevent the jury from concluding that
      the manner in which he accomplished his intimidation indeed had
      a sexual component. [McClintic] surprised the sleeping victim in
      her bedroom. He sat close to her as she lay in her bed in the
      middle of the night. After getting the money he sought, he
      reached out, grabbed her breast and pinched it forcefully. The
      defense argued that the circumstances surrounding the touching
      established that it was not sexually motivated, but the jury was
      free to determine [McClintic’s] intent based on the circumstances
      presented.    Because those circumstances support the jury’s
      ultimate decision, the evidence was sufficient to establish the
      crime and [McClintic] is not entitled to relief.

Id. at 216.   See also Commonwealth v. Richter, 676 A.2d 1232, 1236

(Pa.Super. 1996) (holding evidence was sufficient to sustain indecent assault

conviction where “Richter ‘put his hands under [the complainant’s] shirt and

fondled her breasts’ against her wishes”); In Interest of J.R., 648 A.2d 28,

34 (Pa.Super. 1994) (rejecting J.R.’s argument that the evidence was

insufficient to show that there was any sexual touching for the purpose of

arousing sexual desire by stating “it does not strain the very limits of credulity

to suggest that, when J.R. removed A.B.’s clothing, lifted her up, and licked

her vaginal area, his conduct fell within the purview of the indecent assault

statute”).

      In asserting that the evidence was insufficient, Appellant largely attacks

H.R.’s credibility, making arguments more appropriate to a claim that the

adjudication is against the weight of the evidence. Appellant maintains that

H.R.’s testimony is so riddled with “‘I don’t remember’s and other

inconsistencies” as to make the adjudication “the product of conjecture and




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surmise.”   Appellant’s brief at 17.   The juvenile court had a very different

assessment:

             There was no evidence that [H.R.’s] testimony had been
      tainted, either by another party or by prior experiences of sexual
      abuse.     [H.R.] was articulate and was able to explain the
      difference between the truth and a lie. Although [H.R.] was able
      to testify about more specific details at trial [than she offered
      during the forensic interview], the court attributed that to the
      different questions that were asked by the Assistant District
      Attorney versus in the forensic interview. Additionally, [H.R.]
      reported the incident almost immediately after it occurred. Her
      recollection of the incident to the counselor, the forensic
      interviewer, and at trial was substantially similar. This court finds
      that any inconsistencies were minor and were attributable to
      [H.R.’s] age at the time of this incident and at trial.

Juvenile Court Opinion, 5/22/17, at 8 (unnecessary capitalization omitted).

      The juvenile court was entitled to believe H.R.’s allegations, and its

factual findings are supported by the record. Accordingly, they will not be

disturbed by this Court. See In re B.T., 82 A.3d 431, 434 (Pa.Super. 2013)

(“[C]redibility determinations in juvenile proceedings are within the exclusive

province of the hearing judge.”); In re A.D., 771 A.2d 45, 53 (Pa.Super.

2001) (“The factual finding . . . was based upon a credibility determination

and we, as an appellate court, will not substitute our judgment for that of the

fact finder.”).

      Having concluded that the adjudication was based upon sufficient

evidence, we turn to Appellant’s objections to the juvenile court’s disposition.

We initially observe that the alternatives for disposition of a delinquent child

are statutorily prescribed as follows, in relevant part.


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      (a) General rule.--If the child is found to be a delinquent child
      the court may make any of the following orders of disposition
      determined to be consistent with the protection of the public
      interest and best suited to the child’s treatment, supervision,
      rehabilitation and welfare, which disposition shall, as appropriate
      to the individual circumstances of the child’s case, provide
      balanced attention to the protection of the community, the
      imposition of accountability for offenses committed and the
      development of competencies to enable the child to become a
      responsible and productive member of the community:

                  ....

            (2) Placing the child on probation under supervision of the
            probation officer of the court . . . under conditions and
            limitations the court prescribes.

                  ....

            (5) Ordering payment by the child of reasonable amounts of
            money as fines, costs, fees or restitution as deemed
            appropriate as part of the plan of rehabilitation considering
            the nature of the acts committed and the earning capacity
            of the child. . . .

42 Pa.C.S. § 6352(a)(2), (5).

      Appellant first attacks the juvenile court’s imposition of an indefinite

term of probation. In doing so, Appellant makes many of the arguments this

Court rejected in In re S.A.S., 839 A.2d 1106, 1106 (Pa.Super. 2003), a case

Appellant argues was wrongly decided. Appellant’s brief at 25. Specifically,

Appellant suggests that an indefinite term of probation should be illegal for a

juvenile, as it would be for an adult, and that a definite term no longer than

the maximum available for a convicted adult is required.        Id. at 24-25.

Appellant also contends that a disposition of probation until further order of




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court is fundamentally unfair, and thus a violation of due process. Id. at 21-

24.

      In In re S.A.S., the juvenile was adjudicated delinquent at age 15 for

possession of a small amount of marijuana. Like Appellant, S.A.S. was placed

on probation “until further order of court.” S.A.S. claimed that his disposition

was illegal because it exceeded the maximum penalty available under the

crimes code for the offense. In re S.A.S., supra at 1107. This Court rejected

S.A.S.’s challenge as follows.

      [W]e agree with [S.A.S.] that a juvenile’s term of commitment
      may not exceed four years or the maximum term of imprisonment
      he could have received if convicted as an adult. We also agree
      that under the sentencing code for adult offenders, a term of
      probation may not exceed the possible maximum term of
      imprisonment. However, juvenile proceedings are not criminal
      proceedings. The Juvenile Act vests the court with authority to
      set a term of probation under conditions and limitations the court
      prescribes, so long as the disposition is consistent with the
      protection of the public interest and best suited to the child’s
      treatment, supervision, rehabilitation, and welfare. The probation
      limitations set forth in the crimes code are simply inapposite to
      the Juvenile Act; the two statutes encompass independently
      different systems with different purposes and rules. In contrast
      to the general adult sentencing code, the Juvenile Act empowers
      juvenile courts with wide latitude to render probationary terms
      that are appropriate to the individual circumstances of the child’s
      case.

             We hold that the juvenile court had the authority under the
      Juvenile Act to impose upon [S.A.S.] a period of probation that
      exceeded the maximum possible term of incarceration for the
      particular offense at issue and [S.A.S.’s] disposition is not illegal.
      Nevertheless, [S.A.S.’s] term of probation is still limited by the
      jurisdictional constraints of the Juvenile Act. Moreover, given the
      quasi-open nature of [S.A.S.’s] probation, [S.A.S.] may choose to
      petition the Juvenile Court for relief at the earliest appropriate
      time. Accordingly, we affirm [S.A.S.’s] dispositional order.

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Id. at 1109.

      Thus, based upon controlling precedent, the statutory maximum

sentence for an adult convicted of indecent assault has no bearing on the

validity of Appellant’s disposition. Appellant’s arguments to the contrary, and

her disapproval of In re S.A.S., entitle her to no relief.

      Further, Appellant has not convinced us that her disposition constitutes

a violation of due process. Appellant’s probation is subject to specific terms.

Adjudicatory/Dispositional Order, 12/15/16, at 2 (providing Appellant is

placed on probation until further order of court, is subject to the rules and

regulations of the probation office, must have no contact with the victim, shall

participate in the SSU/SAFE community-based program, and must report for

fingerprinting, photographs, and provision of a DNA sample).       The juvenile

court will consider the propriety of continued supervision at least every six

months at dispositional review hearings, and Appellant herself may at any

time move for clarification, modification, or termination of the terms of her

probation. See Pa.R.J.C.P. 610 (“Dispositional and Commitment Review”);

Pa.R.J.C.P. 612 (“Modification or Revocation of Probation”).      Moreover, as

Appellant acknowledges and this Court has previously noted, a term of

probation with no prescribed end date cannot extend beyond the jurisdiction

of the juvenile court.   Appellant’s brief at 27 (“Granted, the juvenile court

loses authority over the juvenile when he or she attains the age of 21. At the

latest, probation should end at that time.”); In re S.A.S., supra at 1109

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(“[The juvenile’s] term of probation is still limited by the jurisdictional

constraints of the Juvenile Act.”).

       With her last issue, Appellant contends that the juvenile court erred in

requiring her to pay costs without first determining her ability to pay, and in

not specifying the exact amount of costs in the dispositional order.

Specifically, Appellant presents the following argument.

             Here, the record does not indicate any attempt by the
       [c]ourt to determine [Appellant’s] ability to pay costs. Moreover,
       due process requires that she be informed of the amount that she
       must pay at the time of disposition, just like she must be informed
       of the length of time she can expect to be on probation. Costs
       could be 5 dollars, 50 dollars, 500 dollars, or 5,000 dollars. Maybe
       [Appellant] can handle earning some of the lesser amounts to pay
       costs, but there is no indication at all that she has the earning
       capacity at this time to make a $5,000 payment to the juvenile
       court. If there is such a “standard” amount imposed upon all
       juvenile defenders, surely the juvenile court can figure out that
       amount and tell the juveniles at their disposition hearings.
       Fundamental fairness requires it.

Appellant’s brief at 30-31.

       Appellant did not raise these issues before the juvenile court at the

dispositional hearing or in her post-disposition motion, thereby depriving the

juvenile court of the opportunity to address Appellant’s claim.1 Therefore, the

claims are waived. See, e.g., In re B.T.C., 868 A.2d 1203, 1205 (Pa.Super.

2005) (“B.T.C. argues that the trial court imposed the restitution without



____________________________________________


1Appellant raised the claim for the first time in her Rule 1925(b) statement;
however, the juvenile court did not address the issue in its Rule 1925(a)
opinion.

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considering . . . B.T.C.’s earning capacity. However, we find this claim to be

waived.    We have thoroughly scrutinized the transcript of the disposition

hearing and B.T.C. . . . [never] objected to the restitution on these grounds.

. . .”).

       Even if Appellant had not waived the claim, we would grant her no relief.

The Juvenile Act provides that the court may order the juvenile to pay fines,

costs, fees, or restitution upon consideration of, inter alia, the earning capacity

of the child. 42 Pa.C.S. § 6352(a)(5). This Court has explained that

       a juvenile’s earning capacity can be determined by examining
       relevant factors such as:

             the juvenile’s mental ability, maturity and education;
             work history, if any; the likelihood of future
             employment and extent to which the juvenile can
             reasonably meet a restitution obligation; the impact
             of a restitution award on the juvenile’s ability to
             acquire higher education and thus increase the
             juvenile’s earning capacity; and the juvenile’s present
             ability to make restitution.

Commonwealth v. B.D.G., 959 A.2d 362, 367-68 (Pa.Super. 2008) (en

banc) (quoting In Interest of Dublinski, 695 A.2d 827, 830 (Pa. Super.

1997)).

       The record includes two pre-disposition reports, detailing Appellant’s

development and family circumstances. Pre-Disposition Report, 11/8/16, at

1-2; Pre-Disposition Report, 12/8/16, at 1-2.         Appellant testified at the

adjudicatory hearing, enabling the juvenile court to gauge Appellant’s verbal

skills. Appellant’s testimony included reference to past employment. N.T.,


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12/15/16, at 81-82. Thus, although the record contains no express inquiry

by the juvenile court specific to Appellant’s earning capacity and ability to pay,

the record does not support Appellant’s claim that the juvenile court had no

information relevant to the issue.         Further, no relief is due on Appellant’s

complaint that “there is no indication at all that she has the earning capacity

at this time” to make more than a small amount. While it is one factor to be

considered, the law does not require that the juvenile have a present financial

ability to make immediate payment. Dublinski, supra at 830. Appellant was

thirteen years old at the time of the adjudication, suggesting that she has

ample time to earn money before she turns twenty-one.

       We do agree with Appellant that she is entitled to an itemized lists of

costs for which she is responsible. However, she offers no authority for the

proposition that the juvenile court is obligated to specify the numbers at the

dispositional hearing or that the amounts must be detailed in the dispositional

order itself. We have no doubt that Appellant has access to that information

through the juvenile court or probation office.2 See also In re C.A.G., supra




____________________________________________


2 This circumstance highlights the reason this Court requires issues to be
raised prior to appeal. Had Appellant timely sought to make that information
part of the record, and thereby learned that the amount is higher than is
appropriate for her earning capacity, she could have presented this Court with
an argument not based upon speculation. Further, had she made such a
request and been denied the information, we would be in a position to address
that issue.

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at 710-11 (discussing various statutorily-defined costs imposed on juveniles

who are adjudicated delinquent).

      In conclusion, Appellant has failed to persuade us that the juvenile

court’s dispositional order is the product of a manifest abuse of discretion. In

Interest of J.D., supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2018




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