J-S31008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: D.J.B., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.J.B.                          :
                                               :
                                               :
                                               :
                                               :   No. 1050 WDA 2018

           Appeal from the Order of Disposition Dated June 20, 2018
              In the Court of Common Pleas of Venango County
                 Juvenile Division at No(s): J.V. No. 82-2015


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                                   FILED JULY 2, 2019

        Appellant, D.J.B.,1 appeals from the December 8, 2016 dispositional

order entered following his adjudication of delinquency for two counts each of

indecent exposure,2 simple assault,3 false imprisonment,4 and indecent

assault of a person less than 13 years of age,5 as made final by the June 20,

2018 order denying his post-dispositional motion. We affirm.
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1 We note that Appellant is now older than 18 years of age. However,
Appellant is still considered a minor under the Juvenile Act, 42 Pa.C.S.A.
§ 6301 et seq., because he is under 21 years of age and committed an act of
delinquency before the age of 18. See 42 Pa.C.S.A § 6302.

2   18 Pa.C.S.A. § 3127(a).

3   18 Pa.C.S.A. § 2701(a)(3).

4   18 Pa.C.S.A. § 2903(a).

5   18 Pa.C.S.A. § 3126(a)(7).
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       The juvenile court summarized the factual and procedural background

of this case as follows.

       [Appellant] is a [minor], having a date of birth in October 1999.
       On February 18, 2016, a [p]etition alleging delinquency was filed
       against [Appellant], alleging acts which, if committed by an adult,
       would constitute [the above-listed crimes]. The allegations in this
       case arise primarily out of an incident involving [Appellant], G.W.
       ([Appellant’s] step-brother, who occasionally lived in the same
       residence as [Appellant with G.W.’s mother, Crystal Walters]) and
       C.C. (a friend of G.W.), wherein C.C. and G.W. claim that
       [Appellant] locked them in his bedroom and groped their
       genitals.[6] Following a two-day contested adjudication hearing
       [that concluded on October 5, 2016], [the juvenile court] found
       that all of the aforementioned charges against [Appellant] were
       substantiated [], but deferred adjudication until a dispositional
       hearing could be held[.] On December 8, 2016, [the juvenile
       court] conducted an adjudicatory/dispositional hearing, after
       which [it] adjudicated [Appellant] delinquent for the offenses he
       committed, and, [] placed [Appellant] in Pathways Adolescent
       Center until further [o]rder of [c]ourt.

Juvenile Court Opinion, 9/12/2018, at 2-3 (internal footnotes and record

citations omitted).

       Appellant did not file a post-dispositional motion or a timely notice of

appeal. On April 5, 2017, however, the juvenile court reinstated Appellant’s

direct appeal rights nunc pro tunc. On April 6, 2017, Appellant filed a notice

of appeal. On May 3, 2017, the juvenile court issued an order instructing

Appellant to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant filed an untimely concise statement,

which raised a single issue—a challenge to the weight of the evidence. The
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6 G.W. alleged that Appellant abused him more than once prior to the incident
involved herein.

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juvenile court issued a 1925(a) opinion in which it requested that this Court

remand the case to allow Appellant to file a post-dispositional motion

challenging the weight of the evidence nunc pro tunc, as it had been

improperly raised for the first time on appeal. See In re J.B., 106 A.3d 76

(Pa. 2014). On January 3, 2018, this Court remanded the case to the juvenile

court. In re D.J.B., 580 WDA 2017 (Pa. Super. 2018).

      On February 1, 2018, counsel for [Appellant] filed a nunc pro tunc
      post-dispositional motion, which challenged the weight of the
      evidence… After reviewing the nunc pro tunc post-dispositional
      motion, [the juvenile court] was prepared to deny the motion on
      the merits without a hearing and within the 30-day time period
      [permitted for adjudication of such motions]. See Pa. R.J.C.P.
      620(d); Pa. R.J.C.P. 625… However, on the 29th day of the 30-day
      time period…[the juvenile court] convened a shelter review
      hearing[.] At this hearing, substitute counsel for [Appellant], who
      was “filling in” for [Appellant’s] counsel of record, indicated that
      [Appellant’s] counsel of record wished to argue the nunc pro tunc
      post-dispositional motion[.]      [The juvenile court] construed
      substitute counsel’s statement an oral motion requesting an
      extension for the decision on the post-dispositional motion[.]
      [The juvenile court], after considering substitute counsel’s oral
      motion, entered an order granting an extension for decision on
      the post-dispositional motion consistent[.]

Juvenile Court Opinion, 9/12/2018, at 4-5 (record citations omitted).

      On March 2, 2018, the juvenile court ordered Appellant’s counsel to file

a brief relating to the weight of the evidence claim within 20 days of the order.

Appellant’s counsel filed his brief on May 3, 2018, 42 days late. On June 20,

2018, the clerk of courts, upon instruction from the juvenile court, entered an




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order deeming Appellant’s post-dispositional motion denied by operation of

law. This appeal timely followed.7

        Appellant presents a single issue8 for our review.

        Whether the [juvenile] court erred as a matter of law or abused
        its discretion when adjudicating the juvenile [delinquent] on all
        []counts when the weight of the evidence established reasonable
        doubt[,] in that the juvenile was not even present at the time of
        the reported incident, the victims had two different set[s] of
        events, and there was a motive to make false statements.

Appellant’s Brief at 4.

        Appellant’s claim challenges the weight of the evidence. Specifically,

Appellant argues that the juvenile court abused its discretion by adjudicating

Appellant delinquent “despite clear inconsistencies between the testimonies of

the victims and despite clear evidence that [Appellant] was not residing in the

home in which the alleged conduct occurred at the time it was alleged to have

occurred.” Appellant’s Brief at 10.

        “This Court applies the same standard for reviewing weight of the

evidence claims in juvenile cases as those involving adults.” In re J.G., 145

A.3d 1179, 1187 (Pa. Super. 2016) (citation omitted). “An appellate court’s



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7   Both Appellant and the juvenile court have followed Pa.R.A.P. 1925(c).

8  Appellant raised a second issue in his concise statement related to the
juvenile detention center in which he was placed. In his brief, however,
Appellant states that he, “withdraws the second matter complained of in his
concise statement as it is moot due to the passage of time and changed
circumstances.” Appellant’s Brief at 9.

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standard of review when presented with a weight of the evidence claim is

distinct from the     standard of review      applied by the      trial court[.]”

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

      An allegation that the verdict is against the weight of the evidence
      is addressed to the discretion of the trial court. An appellate court,
      therefore, reviews the exercise of discretion, not the underlying
      question of whether the verdict is against the weight of the
      evidence.

In re J.G., 145 A.3d at 1187 (internal quotation and citations omitted). “The

factfinder is free to believe all, part, or none of the evidence and to determine

the credibility of the witnesses.” Commonwealth v. Diggs, 949 A.2d 873,

879 (Pa. 2008). This Court will only reverse the juvenile court’s adjudication

of delinquency if it is so contrary to the evidence as to “shock one’s sense of

justice.” In re J.M., 89 A.3d 688, 692 (Pa. Super. 2014).


      In determining whether this standard has been met, appellate
      review is limited to whether the trial judge's discretion was
      properly exercised, and relief will only be granted where the facts
      and inferences of record disclose a palpable abuse of discretion.
      Thus, the trial court's denial of a [post-dispositional motion] based
      on a weight of the evidence claim is the least assailable of its
      rulings.

Diggs, 949 A.2d at 879-880 (emphasis added).

      Appellant argues that the testimony of the two victims was so

inconsistent that the juvenile court’s decision to adjudicate Appellant

delinquent constitutes an abuse of discretion. We cannot agree. A review of

the record reveals minor inconsistencies in the victims’ testimony.            Such

inconsistencies, however, were for the juvenile court to resolve. See In re



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J.M., 89 A.3d at 692. We discern no palpable abuse of discretion, especially

where, as the juvenile court noted, “the victims’ testimony and interviews

were marked by several very significant common narratives…[i.e.,] that

[Appellant] forced the victims to play “games” with him…that [Appellant]

locked the victims in his room, and that [Appellant’s] door was such that a

tool was required to lock and unlock the door[.]”     Juvenile Court Opinion,

9/12/2018, at 14. Appellant’s first argument is unavailing.

       Next, Appellant states that “[t]he defense presented evidence through

Kelly Brown, who is Appellant’s mother, and though Crystal Walters, who is

G.W.’s mother, Reginald Brown, who is Appellant’s father and was the

paramour of Crystal Walters. The testimony established that [Appellant] was

not in the custody of Crystal Walters or Reginald Brown after May 29, 2015[.]”

Appellant’s Brief at 12. Appellant argues that, in light of this, Appellant was

not in the home of Crystal Walters at the time the incident took place. In

advancing this claim Appellant assumes a definitive incident date in June of

2015. That is not the case.9 Again, these discrepancies regarding the date of

the attacks were for the juvenile court to resolve. Our sense of justice is not

shocked by the juvenile court’s determination that “the balance of the



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9 C.C. testified that the abuse occurred, “right around summertime. I’m not
too sure [of] the date[.]” N.T., 5/31/2016, at 13. G.W. indicated the incident
took place “around the June time period[.]”          N.T., 5/31/2016, at 49.
Moreover, Crystal Walters, a defense witness, testified that Appellant lived
with her until she went to jail on “about June 28[, 2015.]”

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evidence establishes beyond a reasonable doubt that the assaults did, in fact,

occur.” Juvenile Court Opinion, 9/12/2018, at 14. Appellant’s challenge to

the weight of the evidence is meritless. No relief is due.

      Dispositional order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2019




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