J-S41021-17


                                  2017 PA Super 240

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


                        .
APPEAL OF: C.E.H.
                                                      No. 1522 MDA 2016


                Appeal from the Order Entered August 17, 2016
           In the Court of Common Pleas of Northumberland County
              Juvenile Division at No(s): CP-49-JV-0000200-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                                 FILED JULY 21, 2017

        C.E.H., a minor, appeals from a dispositional order entered following

his adjudication of delinquency for simple assault1 (M2), aggravated assault2

(F1), obstructing administration of law or other governmental function 3

(M2), and two counts of disorderly conduct (M3).4          C.E.H. was placed on

probation under the supervision of the Northumberland County Juvenile

Court, ordered to participate in all treatment programs deemed necessary



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2701(a)(1).
2
    18 Pa.C.S. § 2702(a)(2).
3
    18 Pa.C.S. § 5101.
4
    18 Pa.C.S. § 5503(a)(1); 18 Pa.C.S. § 5503(a)(4).
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and appropriate, and directed to complete 20 hours of community service.

After careful review, we affirm.

      On July 27, 2015, Chief Officer Todd Owens and Officer Matthew

Dillman responded to a disturbance at 437 East Water Street, Mt. Carmel,

Pennsylvania, where they took C.E.H.’s stepfather, J.F.S., into custody.

While attempting to take Stepfather into custody, C.E.H. became irate.

C.E.H. ran around the scene shouting obscenities at the police, jumped on

the back of Chief Officer Owens, and impeded the police from escorting

Stepfather to the police cruiser.

      During C.E.H.’s attempt to impede Stepfather’s escort to the police

cruiser, Gary Hixon intervened. Hixon is a former member of the Mt. Carmel

rescue squad for which he had served for eighteen years, currently serves

on borough council, is a friend of Chief Officer Owens, and an acquaintance

of Officer Dillman. On the day in question, Hixon was driving to his mother’s

house at 409 North Locust Street when he noticed people in the street at the

scene of the incident. Hixon then exited his vehicle, observed C.E.H. “trying

to get [Chief Officer Owens], like grabbing the officer from behind,” grabbed

C.E.H., and pushed him away from the police.     N.T. Adjudicatory Hearing,

8/17/2016, at 17. C.E.H. continued to direct obscenities at the police. The

incident lasted approximately 45 minutes.

      On August 17, 2016, the juvenile court heard testimony from four

eyewitnesses, and adjudicated C.E.H. delinquent on five charges. Counsel




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for C.E.H. filed a timely notice of appeal and a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal.5

       On appeal, C.E.H. presents the following issue for our review:

       Was the juvenile properly adjudicated delinquent on the offenses
       of simple assault, aggravated assault, obstructing administration
       of law or other governmental function, and two counts of
       disorderly conduct, based on a claim that the Commonwealth
       lacked sufficient evidence in establishing a finding of delinquency
       beyond a reasonable doubt?

       C.E.H. argues there was insufficient evidence to prove his delinquency

beyond a reasonable doubt. Specifically, with regard to the delinquency of

simple and aggravated assault, C.E.H. argues there was insufficient evidence

to establish an intent to attempt to cause bodily injury. Additionally, C.E.H.

argues that he was precluded from developing a defensive theory of bias

based on the relationships among Hixon, Chief Officer Owens, and Officer

Dillman, because opposing counsel’s objections to further questioning such

relationships were sustained. Lastly, C.E.H. argues his claim was against the

weight of evidence because the trial court relied on the testimony of less

credible witnesses.

       When reviewing a claim that the trial court erred in determining

evidence was sufficient to find proof beyond a reasonable doubt, an

appellate court must assess evidence and all reasonable inferences from that
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5
  On September 22, 2016, C.E.H. filed an amended Rule 1925(b) statement
that was accepted by the trial court. In turn, the trial court filed a 1925(a)
opinion on December 28, 2016.



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evidence most favorably to the verdict winner.               Commonwealth v.

Whitacre, 878 A.2d 96, 99 (Pa. Super. 2005). As long as the fact-finder

could use such evidence and inferences therefrom to find proof beyond a

reasonable    doubt,   the   evidence     is   sufficient.   Id.    Further,   the

Commonwealth can meet its burden of reasonable doubt “by means of

wholly circumstantial evidence.”        Id.    Only when “as a matter law, no

probability of fact can be drawn from the combined circumstances,” is the

burden of proof beyond a reasonable doubt not met.           Id.   Ultimately, the

fact-finder resolves all questions of doubt and is free to believe all, part, or

none of the evidence presented. Commonwealth v. Newsome, 787 A.2d

1045, 1047–1048 (Pa. Super. 2001).

      During the adjudication proceedings on August 17, 2016, the

Commonwealth presented the testimony of four eyewitnesses.               The four

eyewitnesses provided consistent testimony that described a scene where

C.E.H. contacted Officer Owens by jumping on his back and tugging at his

waist area, while continuously shouting obscenities at law enforcement in an

attempt to prevent the arrest of his Stepfather. The testimony of the four

eyewitnesses corroborated these events.

      A person is guilty of simple assault if he “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another.”       18

Pa.C.S. § 2701(a)(1). Under section 2701(a)(1), a victim need not actually

suffer bodily injury; the “attempt to inflict bodily injury may be sufficient.

This intent may be inferred from the circumstances surrounding the incident

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if a specific intent to cause bodily injury may reasonably be inferred

therefrom.”   Commonwealth v. Polston, 616 A.2d 669, 679 (Pa. Super.

1992).

      A person is guilty of aggravated assault if he “attempts to cause or

intentionally, knowingly or recklessly causes serious bodily injury to any of

the officers” listed in subsection (c) of section 2702.        18 Pa.C.S. §

2702(a)(2).   The Commonwealth only needs to prove that the juvenile

attempted to cause serious bodily injury; it does not have to prove that the

victim actually suffered serious bodily injury.   Commonwealth v. Holley,

945 A.2d 241, 247 (Pa. Super. 2008).        “The Commonwealth may prove

intent to cause serious bodily injury by circumstantial evidence.” Id.

      With regard to C.E.H.’s attempt to cause serious bodily injury, the

testimony provided by the four eyewitnesses circumstantially proves C.E.H.’s

intent to attempt to inflict bodily harm.   After witnessing the arrest of his

Stepfather, C.E.H. contacted Officer Owens by jumping on his back and

tugging at his waist area, which was lined with several tools including a

firearm, “taser, impact weapon, [pepper] spray, and knives.”             N.T.

Adjudicatory Hearing, 8/17/2016, at 33.           Viewing the evidence most

favorably to the Commonwealth as the verdict winner, we find the evidence




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supports the trial court’s determination that C.E.H. committed the delinquent

acts of both simple and aggravated assault.6

       C.E.H.’s next issue on appeal is whether the trial court erred in

determining     that    the   Commonwealth       presented   evidence   beyond   a

reasonable doubt that he obstructed the administration of law or other

governmental function and that his actions constituted disorderly conduct. A

person obstructs the law “if he intentionally obstructs, impairs or perverts

the administration of law…by force, violence, physical interference or

obstacle.”    18 Pa.C.S. § 5101.         Based on the testimony provided, C.E.H.

attempted to obstruct the police escort of his Stepfather by “force, violence,

physical interference and obstacle,” Trial Court Opinion, 12/28/2016, at 4,

when he jumped on Chief Officer Owens’ back while running and walking in

front of his Stepfather when the officers were escorting his Stepfather to the

police cruiser. N.T. Adjudicatory Hearing, 8/17/2016, at 33-34. Thus, the

evidence was sufficient to prove his intent under section 5101.

       C.E.H. was also charged with two counts of disorderly conduct under

sections 5503(a)(1) and (a)(4). A person is guilty under section 5503(a)(1)

____________________________________________


6
  We recognize that an adjudication of delinquency “is not a conviction of
crime.” See 42 Pa.C.S. § 6354(a). Thus, the doctrine of merger, stating
that crimes merge for sentencing purposes if they arise from single criminal
act and statutory elements of one offense are included in elements of
another offense, does not apply in the instant juvenile matter. See 42
Pa.C.S.A. § 9765 (setting forth merger doctrine as part of sentencing in
criminal proceedings).



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if he or she intends to “cause public inconvenience, annoyance or alarm, or

recklessly creating a risk,” 18 Pa.C.S. § 5503(a), and does so, by “fighting or

threatening, or [by] violent or tumultuous behavior.”           18 Pa.C.S. §

5503(a)(1). A person is guilty of disorderly conduct if he or she creates a

“hazardous or physically offensive condition by any act which serves no

legitimate purpose of the actor.” 18 Pa.C.S. § 5503(a)(4). Here, C.E.H.’s

violent behavior of jumping on Chief Officer Owens’ back and tugging at his

waist area that was lined with several deadly weapons caused a public

inconvenience and recklessly created a risk that served no legitimate

purpose.   See Commonwealth v. Pringle, 450 A.2d 103, 105–106 (Pa.

Super. 1982) (court affirmed disorderly conduct conviction where defendant

shouted obscenities at officers, which could have motivated others at scene

to act, while officers were arresting defendant’s friend). Thus, we find the

evidence supports the trial court’s determination that C.E.H. committed the

delinquent act of disorderly conduct.

      C.E.H. also claims that the trial court prevented him from developing a

defensive theory of bias based on the relationships among Hixon, Chief

Officer Owens, and Officer Dillman.        Specifically, he claims that the

Commonwealth’s objections to further questioning such relationships were

improperly sustained during the adjudicatory hearings. Although the court

did sustain an objection to one of C.E.H.’s questions regarding Hixon’s

relationship with the officers on the scene, the court did permit testimony

regarding the length and character of the relationships. Hixon testified that

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he knew Chief Officer Owens and Officer Dillman for a long time.            In any

event, such limited questioning of Hixon is harmless error where four other

eyewitnesses corroborated his testimony.

        Lastly, C.E.H. argues his claim was against the weight of evidence

because the trial court relied on the testimony of less credible witnesses.

We find this claim waived.

        An appellant must raise a weight of evidence claim with the trial court

first   to   preserve   appellate   review   of   the   claim.   In   Re   J.B.   v.

Commonwealth, 106 A.3d 76, 95 (Pa. 2014).                  Generally, a weight of

evidence claim is “addressed to the discretion of the judge who actually

presided at trial.” Id. Once a trial court judge rules on a weight of evidence

claim in the first instance, an appellate court can then review the trial court’s

ruling for an abuse of discretion. Id.

        Unlike Rule of Criminal Procedure 607, which requires a weight of the

evidence claim be raised prior to sentencing or in a post-sentence motion,

the Juvenile Rules of Court Procedure do not have any equivalent rule

specifying how a juvenile adjudicated delinquent must present a weight of

the evidence claim to preserve it for appellate review. In In Re J.B., supra,

the juvenile presented a weight of evidence claim in his Rule 1925(b)

statement, which prompted the trial court to address the weight issue in its

Rule 1925(a) opinion. Id. Following its own decision in Commonwealth v.

Widmer, 689 A.2d 211 (Pa. 1997), the Supreme Court found the weight of

evidence claim preserved and remanded the case for J.B. to file a post-

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dispositional motion nunc pro tunc where he could raise the weight of

evidence claim.

      Unlike the facts in J.B., however, here C.E.H. did not raise his weight

claim in his Rule 1925(b) statement. Consequently, the trial court did not

address C.E.H.’s weight claim in its Rule 1925(a) opinion.     Rather, C.E.H.

first raises the claim in his appellate brief. Therefore, because the claim was

not first presented in the trial court, we must deem it waved. In re J.B.,

supra.

      Order affirmed.

      President Judge Gantman joins the Opinion.

      Judge Platt concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2017




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