J-S49030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




    APPEAL OF: C.S.S.

                                                        No. 1799 MDA 2017


                Appeal from the Order Entered October 23, 2017
              In the Court of Common Pleas of Cumberland County
                Criminal Division at No: CP-21-JV-0000321-2016


BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                            FILED JANUARY 25, 2019

        Appellant, C.S.S., appeals from an order of disposition following an

adjudication that Appellant, when he was twelve years old, committed a single

count of involuntary deviate sexual intercourse (“IDSI”)1 against a child. The

juvenile court adjudicated Appellant delinquent, found him to be in need of

treatment, supervision, and rehabilitation, and placed him on probation with

conditions that did not remove him from his family or the community.

Although the evidence demonstrates that Appellant committed a delinquent

act, the Commonwealth failed to demonstrate that he needs further

treatment, supervision, or          rehabilitation.   Therefore, we   vacate   the

dispositional order and reverse the adjudication of delinquency.

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* Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 3123.
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     The juvenile court accurately recounted the evidence adduced during a

fact-finding hearing on August 14, 2017 as follows:

     1. The then 8-year-old Victim testified.

     2. Victim’s mother had indicated for about two weeks that Victim
     had not been acting like herself, so Mother asked the child what
     was wrong.

     3. Victim described a game called “try not to laugh” where Victim,
     [Appellant], a brother or sister, or all would watch videos online
     and the consequence for laughing at a video, based on the rules
     made by [Appellant], was that the person or persons who laughed
     “had to do something inappropriate.”

     4. Victim described inappropriate to mean the people would have
     to touch “privates” or kiss.

     5. Victim went on to describe a game of choices, designated so by
     [Appellant], where when Victim made a choice, [Appellant]
     indicated the consequences of such choice was that she would
     have to “lay in the bed, put my feet over something and then he
     would put his penis into my butt.”

     6. When asked if it was “just maybe a little inside?” Victim
     responded “yeah” and further replied “it felt a little weird.”

     7. Victim described the placement act occurring for seconds.

     8. On cross-examin[ation], Victim reiterated how the illusion of a
     choice occurred and stated “[Appellant] would stick his penis into
     my butt or touching it.”

     9. In the face of compound questions from counsel and well-timed
     but meritless objections from the Commonwealth, Victim never
     wavered, recanted, or changed her testimony.




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Juvenile Court Opinion, 1/22/18, at 2-3 (footnotes omitted). The court found

Appellant delinquent of IDSI, but dismissed three counts of indecent assault2

because the Commonwealth failed to prove that Appellant had contact with

the victim for the purpose of arousing sexual desire.

        On October 23, 2017, the juvenile court held a dispositional hearing,

adjudicated Appellant delinquent, and placed him on supervision. Appellant

filed a timely notice of appeal, and both Appellant and the juvenile court

complied with Pa.R.A.P. 1925.

        Appellant raises two issues in this appeal:

        1) With the lack of evidence on the record, did the juvenile court
        manifestly abuse its discretion in adjudicating [C.S.S. delinquent
        of] one count of [IDSI] at CP-21-JV-321-2016?

        2) Did the juvenile court manifestly abuse its discretion by finding
        that [C.S.S.] is in need of treatment, supervision, or rehabilitation
        to treat [C.S.S.’s] sexual behavior despite the lack of any evidence
        presented by the Commonwealth indicating as much?

Appellant’s Brief at 5 (some capitalization omitted).

        We begin by reviewing the relevant procedural framework.                To

adjudicate a juvenile delinquent, “a juvenile court must determine (1) that the

juvenile committed the delinquent acts alleged; and (2) that the juvenile is in

need of treatment, supervision, or rehabilitation, before it may enter an

adjudication of delinquency.” Commonwealth v. M.W., 39 A.3d 958, 962

(Pa. 2012) (emphasis added). The Commonwealth must prove both elements


____________________________________________


2   18 Pa.C.S.A. § 3126.

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beyond a reasonable doubt. In Interest of N.C., 171 A.3d 275, 283 (Pa.

Super. 2017). “A determination that a child has committed a delinquent act

does not, on its own, warrant an adjudication of delinquency.” M.W., 39 A.3d

at 966.

      This is so even where the delinquent act constitutes a felony
      because, while the commission of such an act presumptively
      supports a finding that the juvenile is in need of treatment and
      supervision (and thus can be adjudicated delinquent), the juvenile
      court must still make that finding after allowing for other evidence.
      42 Pa.C.S.A. § 6341(b) (“In the absence of evidence to the
      contrary, evidence of the commission of acts which constitute a
      felony shall be sufficient to sustain a finding that the child is in
      need of treatment, supervision or rehabilitation.”).

Id. at 966 n.9.

      Once the juvenile court determines that the child committed the alleged

act, it must hold a dispositional hearing in which it “hear[s] evidence as to

whether the child is in need of treatment, supervision[,] or rehabilitation.” Id.

at 965.   “If the court finds that the child is not in need of treatment,

supervision[,] or rehabilitation[,] it shall dismiss the proceeding and discharge

the child from any detention or other restriction theretofore ordered.” Id.;

see also Pa.R.J.C.P. 409(1). “If the court determines the juvenile is in need

of treatment, supervision, or rehabilitation, the court shall enter an order

adjudicating the juvenile delinquent and proceed in determining a proper

disposition under Rule 512.” Pa.R.J.C.P. 409(2)(a).

      In his first argument, Appellant challenges the sufficiency of the

evidence underlying the court’s determination that he committed IDSI. When


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examining a challenge to the sufficiency of the evidence supporting an

adjudication of delinquency, this Court employs a well-settled standard of

review:

     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. The finder of fact is free to believe some, all, or
     none of the evidence presented.

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

     The juvenile court observed:

     “A person commits [IDSI] with a child, a felony of the first degree,
     when the person engages in deviate sexual intercourse with a
     complainant who is less than 13 years of age.” 18 Pa.C.S.A. §
     3123(b). The act of sexual intercourse requires only “some
     penetration, however slight.”          18 Pa.C.S.[A.] § 3101;
     Commonwealth v. L.N., 787 A.2d 1064, 1070 (Pa. Super.
     2001). Deviate sexual intercourse is defined, in relevant part, as
     “[s]exual intercourse per os or per anus between human
     beings[.]” 18 Pa.C.S.[A.] § 3101. It is clearly established that
     there is no requirement that penetration reach the vagina or


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     “farther reaches of the female genitalia. . . .” Commonwealth v
     Trimble, 615 A.2d 48, 50 (Pa. Super. 1992).

        The General Assembly did not define “intercourse per os or
        per anus.” We construe non-technical words and phrases in
        statutes, which remain undefined, according to their
        ordinary usage.      18 Pa.C.S.[A.] § 105; 1 Pa.C.S.[A.]
        § 1903(a); Commonwealth v. Brachbill, [] 555 A.2d 82,
        86 ([Pa.] 1989). The plain meaning of “intercourse,” as
        used in § 3101, is “physical sexual contact between
        individuals that involves the genitalia of at least one person
        [.]” Webster’s Third New International Dictionary 1177
        (unabridged 1986). “Per” has been defined as “by the
        means or agency of: by way of. THROUGH.” Id. at 1674.
        Consequently, ordinarily the meaning of “per os or per anus”
        is through or by means of the mouth or posterior opening of
        the alimentary canal. Webster’s at pp. 1595 (defining “os”)
        and 97 (defining “anus”). Our courts have viewed the
        phrase “intercourse per os or per anus” as describing oral
        and anal sex.        See generally Commonwealth v.
        Hitchcock, [] 565 A.2d 1159 ([Pa.] 1989) (noting that
        definition of sexual intercourse encompasses forcible
        penetration of the three defined orifices of the body);
        Commonwealth v. Lee, 638 A.2d 1006, petition for
        allowance of appeal denied, 647 A.2d 898 ([Pa.] 1994)
        (interpreting sexual intercourse and deviate sexual
        intercourse to include acts of oral anal sex).

        Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002).

Juvenile Court Opinion. at 4-5. The court continued:

     The testimony of the eight year old child Victim that [Appellant]
     stuck his penis into her butt meets the statutory elements of IDSI
     with a child. [Appellant]’s penis is his genitalia and when placed
     inside the natal cleft, the bifurcation that appears between the two
     cheeks of the buttocks beginning at the bottom of the spine and
     ending below the anus, however slight, is deviate sexual
     intercourse per anus. There is no requirement that the penis
     penetrate the anus or reaches farther into the anal canal any more
     than it would have to penetrate a vagina or mouth. This is
     sufficient evidence that alone warranted the finding of
     [Appellant]’s commission of the criminal act of IDSI with a child.


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      Victim’s testimony did not stand alone as there is additional
      evidence that further supports the finding of fact. Victim clearly
      has had therapeutic counseling as she did not exude shame, which
      may have been the cause of the behavior change noted by
      [Victim’s] mother. This does not indicate her testimony was
      coached, for had she been coached it would have been easy to
      meet the prerequisite indecent assault elements for sexual
      arousal. Clearly there is probable cause for the indecent assault
      allegations based on the described general actions, but the fact of
      someone being sexually stimulated, while a reasonable belief to
      an adult, were not part of Victim’s education or experience. This
      lack of knowledge incontrovertibly shows that Victim had not been
      coached and further bolsters her credibility. Mother’s testimony,
      while not considered as proof of the facts she heard, provides a
      timeline for the incident and reveals the demonstrative signs of
      trauma suffered by Victim. These signs are further indicators of
      Victim’s veracity, which when taken with how she presented
      herself and testified in court, in addition to her own words, are
      more than sufficient evidence of the commission of the offense.

Id. at 5-6.

      We agree with this reasoning, and we conclude that the evidence was

sufficient to prove that Appellant committed IDSI by penetrating Victim’s anus

with his penis. Thus, Appellant’s first argument fails.

      In his second argument, Appellant contends that the Commonwealth

failed to present sufficient evidence that he is in need of treatment,

supervision, or rehabilitation to address his sexual behavior. We agree with

Appellant.

              Notably, while the Commonwealth did not present any witnesses

during Appellant’s dispositional hearing, Appellant presented two expert

witnesses.    Dr. Daniel Morrow, a family therapist, testified that he treated

Appellant for sexual behavior from August 2016 until March 2017. Notes of


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Testimony (“N.T.”), 10/23/17, at 28, 32.      Appellant’s treatment for sexual

behavior ended in March 2017, and his treatment now addresses only his

schoolwork and ADHD, areas in which he is improving.          Id. at 32-33.    A

psychologist, Dr. Timothy Foley, testified that he performed Appellant’s

psychosexual evaluation and found him to be of low risk to sexually re-offend.

Id. at 17. At the request of Appellant’s probation officer (who did not testify),

Dr. Foley evaluated whether Appellant needed further sexual treatment. Id.

at 14. Dr. Foley issued an expert report stating that Appellant’s risk to re-

offend was low. He based this conclusion on three tests. The first test was

the Hare PCLR test for adolescents tests for ingrained antisocial or

psychopathic tendencies. On a scale from 0 to 40, with 0 being the lowest

risk of psychopathic tendency and 40 the highest, Appellant scored 7, which

is “quite low for juveniles on probation.” Id. at 17. The second test, the

Juvenile Sex Offender Assessment Protocol, “looks at various indices,

including background, stabilities . . . other kinds of criminal behaviors,

adjustments to the community and acceptance of responsibility.” Id. On a

range from 0 to 56, with 56 being the greatest risk of offending, Appellant

scored 7.   Id.   The third test was the Protective + Risk Observations For

Eliminating Sexual Offense Recidivism test, which reflected that Appellant

“formed a therapeutic alliance” with Dr. Morrow and profited from therapy.

Id. at 17-18.




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      Dr. Foley testified that Appellant admitted looking at pornography when

he was nine years old, but Dr. Foley found “no indication of paraphilia disorder,

a disorder of sexual appetite. There was no other acting out [or] antisocial

kinds of behavior that were reported.” Id. at 16. Finally, Appellant has not

had any additional criminal incidents and has moved away from the victim and

her family. Id. at 22.

      The juvenile court abused its discretion under these circumstances by

concluding that Appellant needs further treatment for his sexual offense. Our

decisions in N.C. and In Re T.L.B., 127 A.3d 813 (Pa. Super. 2015), provide

guidance on this issue. The juvenile in N.C. committed aggravated indecent

assault against a victim less than thirteen years old. At his disposition hearing,

(1) the Commonwealth did not seek to introduce documentary evidence, (2)

the juvenile’s probation officer stated that he was a “model probationee,” and

(3) the chief probation officer wanted him to undergo psychosexual evaluation

merely because she did not know whether he needed further treatment. Id.,

171 A.3d at 284-85.       The court held that the juvenile needed further

treatment.    This Court vacated the disposition order and reversed the

adjudication of delinquency, reasoning:

      It is clear from the juvenile court’s opinion that it impermissibly
      shifted the burden regarding whether [the juvenile] was in need
      of treatment, supervision, or rehabilitation to [the juvenile]. In
      its opinion, the court stated “at no point in the pre-adjudication
      and disposition hearing memorandum did [the juvenile] aver that
      he either admitted or received treatment focused on his
      delinquent acts in this case.” . . . Moreover, despite the lack of
      relevant documentation and the Commonwealth’s failure to call

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      any of [the juvenile]’s former service providers or other relevant
      witnesses, the juvenile court concluded the absence of evidence
      was affirmative proof that [the juvenile] needed treatment, when
      in reality all it demonstrates is that the Commonwealth failed to
      meet its burden. The juvenile court opined that the lack of
      evidence suggested that [the juvenile]’s former treatment was
      ineffective now that he admitted to engaging in indecent assault.
      This may be the case. But it is also entirely possible that [the
      juvenile]’s former treatment is what caused [the juvenile] to
      accept responsibility for his actions at age 18 during the current
      proceedings. Either way, it is the Commonwealth’s burden to
      provide evidence proving that [the juvenile] needed treatment,
      supervision, or rehabilitation at the time of the adjudicatory
      hearing, and the Commonwealth failed to do so.

Id. at 286-87. We held that “the juvenile court abused its discretion in finding

that Appellant was in need of treatment because this finding is not supported

by the record.” Id. at 287.

      In T.L.B., a juvenile was charged with indecent assault, and his

therapist was the sole witness at his dispositional hearing.     The evidence

showed that the juvenile had been in treatment for several months, had made

progress in his treatment, had completed all treatment relevant to the

delinquent act, and was expected to successfully complete treatment for

mental health concerns unrelated to his sexual behavior. The juvenile court

dismissed the juvenile complaint on the ground that he did not need

treatment, supervision, or rehabilitation for his act of indecent assault. This

Court affirmed on the basis of the juvenile court’s “thorough discussion of the

evidence.” Id., 127 A.3d at 819.

      The evidence in the present case is at least as strong as, if not stronger

than, the evidence presented in support of the juveniles in N.C. and T.L.B.

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While the Commonwealth presented two witnesses in N.C., it presented no

evidence whatsoever in this case.      Whereas the juvenile in N.C. did not

present expert testimony, Appellant presented two experts, Dr. Foley and Dr.

Morrow, who testified that Appellant was at a low risk to re-offend. Further,

as in T.L.B., Appellant successfully completed all treatment relating to his

sexual offense, and his treatment now focuses on unrelated matters (his

ADHD and schoolwork).       In addition, he has had no additional criminal

incidents and has moved away from the victim and her family. Because the

Commonwealth failed to present any evidence, and because Appellant

submitted substantial evidence that he presented a minimal risk of committing

future sexual offenses, the Commonwealth failed to meet its burden of proving

beyond a reasonable doubt that Appellant needs further treatment,

supervision or rehabilitation to address his sexual behavior.

      The juvenile court gave three reasons for its disposition: (1) Appellant’s

expert had not seen or heard the specific finding of fact of penetration made

by the court and “seemed to make his own conclusions to suit his opinion,”

(2) Appellant’s expert “ignored . . . acts of conditioning and indoctrination”

that “are classic signs of predatory behavior, and if done by an adult would be

denominated as grooming,” and (3) Appellant’s expert testimony that

Appellant looked at pornography once at age nine “does not explain the

sophistication shown in Juvenile’s overall actions at and around the time of

the incident.”   Juvenile Court Opinion at 6. The record does not support any


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of these conclusions. Contrary to the juvenile court’s first claim, Dr. Foley

was aware that Appellant had committed IDSI against the victim. He testified

that he met with Appellant following his IDSI adjudication to evaluate what

level of sex offender treatment or supervision Appellant needed.           N.T.,

10/23/17, at 13-14. Second, the court failed to identify any evidence that

Appellant’s acts were those “of conditioning or indoctrination” that would

constitute “grooming” if done by an adult. Dr. Foley did not make any such

determination, and quite tellingly, the Commonwealth failed to introduce any

evidence, including expert testimony, at all.3 Third, the court’s conclusion that

Appellant showed “sophistication” in his “overall actions at and around the

time of the incident” is both vague and unsupported by any evidence

explaining how his single act of IDSI was “sophisticated,” thus requiring

treatment, supervision or rehabilitation.

       Based on the foregoing, we hold that the juvenile court abused its

discretion in finding Appellant was in need of treatment, rehabilitation, and

supervision, because the record does not support this finding. Therefore, we




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3 The Commonwealth certainly is familiar with presenting expert testimony to
prove that individuals have dangerous sexual tendencies, yet it neglected to
do so here. See, e.g., Commonwealth v. Meals, 912 A.2d 213, 223-24 (Pa.
2006) (expert testimony presented by Commonwealth was key component in
determination     that   defendant   was     sexually   violent   predator);
Commonwealth v. Woeber, 174 A.3d 1096, 1106-07 (Pa. Super. 2017)
(same).

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vacate the juvenile court’s dispositional order and reverse the adjudication of

delinquency.

      Dispositional order vacated.     Adjudication of delinquency reversed.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/25/2019




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