J-S45024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.D., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


APPEAL OF: D.D., A MINOR
                                                      No. 2006 MDA 2014


            Appeal from the Dispositional Order of October 20, 2014
               In the Court of Common Pleas of Dauphin County
               Juvenile Division at No.: CP-22-JV-0000471-2014


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                           FILED OCTOBER 06, 2015

       D.D., a minor, appeals the October 20, 2014 dispositional order. We

affirm.

       The juvenile court set forth the following factual and procedural history

of this case:

       On June 7, 2014, [C.S.] and [D.D.] were at the park located on
       Radner Street, [in Dauphin County, Pennsylvania. C.S.] testified
       that he and [D.D.] were acquaintances and did not have plans to
       meet up at the park. Once at the park, [D.D.] and [C.S.] began
       to slap box with each other. [C.S.] testified that slap boxing is a
       form of playing similar to [horseplay.] After some time of
       playing slap box, [D.D.] began to choke [C.S.] and put him in a
       headlock.

       After successfully removing himself from the headlock, [C.S.]
       punched [D.D. D.D.] testified that, in addition to [C.S.,] a friend
       of [C.S.’] punched [D.D.] After receiving a punch, [D.D.] fell
       back onto a bench and he and [C.S.] began to fight. Following
       the punch from [C.S., D.D.] proceeded to grab [C.S.’] head with
       both of his hands and bite [C.S.’] nose. [C.S.] testified that
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*
       Former Justice specially assigned to the Superior Court.
J-S45024-15


       [D.D.] continued to bite his nose even after [C.S.] was no longer
       touching [D.D.] [D.D.] bit [C.S.’] nose until the tip came off and
       the tip was in [D.D.’s] mouth. [D.D.] testified that he spit the
       tip out of his mouth. After [D.D.] spit the tip of [C.S.’] nose out
       of his mouth, [D.D.] released [C.S. D.D.] testified that he then
       ran away and called his mother, but not the police.

       A bystander gave [C.S.] the tip of his nose in a bag and [C.S.]
       was driven to the hospital. [C.S.] testified that his mother took
       photographs of his injury shortly after it occurred as well as
       during the healing process.

       [C.S.’] initial visit to the hospital was about two weeks.
       Additionally, [C.S.’] injury required two plastic surgeries as well
       as skin grafting on the forehead. [C.S.] testified that he was in
       excruciating pain following the two surgeries and had a third
       surgery scheduled [at the time of the hearing.] Additionally,
       [C.S.,] who is a section leader for his high school’s drum line,
       testified that he was unable to attend band camp that summer
       . . . because he needed to visit the doctor every other day to get
       the facial wrap from his surgeries changed.

Juvenile Court Opinion (“J.C.O.”), 2/23/2015, at 2-3 (citations to the

certified record omitted).

       As a result of these events, the Commonwealth filed a delinquency

petition against D.D. alleging that he committed aggravated assault. 1       On

October 24, 2014, following a hearing, the juvenile court adjudicated D.D.

delinquent of aggravated assault, and placed him on probation. On October

29, 2014, D.D. timely filed a post-dispositional motion, wherein he argued

that “[t]he verdict [was] against the weight of the evidence.”      See D.D.’s

Post-Dispositional Motion, 10/29/2014, at 2 (unnumbered).


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1
       18 Pa.C.S. § 2702(a)(1).



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      On November 26, 2014, before the juvenile court had ruled upon his

motion, D.D. filed a notice of appeal. On December 15, 2014, D.D. filed with

this Court an application for remand pending the resolution of his post-

dispositional motion.   We directed D.D. to file with the juvenile court a

praecipe for entry of an order denying his post-dispositional motion by

operation of law.   D.D. complied, and the juvenile court entered such an

order on January 9, 2015. Accordingly, we treat D.D.’s notice of appeal as if

he had filed it on January 9, 2015. See Pa.R.A.P. 905(a)(5) (“A notice of

appeal filed after the announcement of a determination but before the entry

of an appealable order shall be treated as filed after such entry and on the

day thereof.”).   D.D. filed a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) on February 2, 2015, and the juvenile

court filed a Pa.R.A.P. 1925(a) opinion on February 23, 2015.

      D.D. presents one issue for our consideration: “Whether the [juvenile]

court erred in denying [D.D.’s] post-dispositional motion where the

adjudication of delinquency was against the weight of the evidence so as to

shock one’s sense of justice where [D.D.] acted out of self-defense?” Brief

for D.D. at 5.

      Appellate review of a challenge to the weight of the evidence entails

review of the exercise of discretion, not of the underlying question of

whether the adjudication itself was against the weight of the evidence.

Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). Because the

juvenile court had the opportunity to see and hear the evidence presented,

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we give the utmost consideration to the findings and reasons advanced by

the judge when reviewing a determination that the verdict is not against the

weight of the evidence.   Commonwealth v. Farquharson, 354 A.2d 545

(Pa. 1976). In effect, “the [juvenile] court’s denial of a motion for a new

trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011).

     This does not mean that the juvenile court’s discretion to grant or

deny a motion for a new trial based upon a challenge to the weight of the

evidence is unrestrained. Our Supreme Court has explained:

     The term “discretion” imports the exercise of judgment, wisdom
     and skill so as to reach a dispassionate conclusion within the
     framework of the law, and is not exercised for the purpose of
     giving effect to the will of the judge.          Discretion must be
     exercised on the foundation of reason, as opposed to prejudice,
     personal motivations, caprice or arbitrary actions. Discretion is
     abused where the course pursued represents not merely an error
     of judgment, but where the judgment is manifestly unreasonable
     or where the law is not applied or where the record shows that
     the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (quoting Coker

v. S.M. Flickinger Co., 625 A.2d 1181, 1184-85 (Pa. 1993)).

     In framing his issue as a challenge to the weight of the evidence, D.D.

conflates two distinct claims with different standards of review. In Widmer,

our Supreme Court highlighted the distinction between a challenge to the

sufficiency of the evidence, which contests the quantity of the evidence

presented at trial, and a challenge to the weight of the evidence, which

attacks the quality of that evidence.

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     The distinction between these two challenges is critical. A claim
     challenging the sufficiency of the evidence, if granted, would
     preclude retrial under the double jeopardy provisions of the Fifth
     Amendment to the United States Constitution, and Article I,
     Section 10 of the Pennsylvania Constitution, whereas a claim
     challenging the weight of the evidence if granted would permit a
     second trial.

     A claim challenging the sufficiency of the evidence is a question
     of law. Evidence will be deemed sufficient to support the verdict
     when it establishes each material element of the crime charged
     and the commission thereof by the accused, beyond a
     reasonable doubt. Where the evidence offered to support the
     verdict is in contradiction to the physical facts, in contravention
     to human experience and the laws of nature, then the evidence
     is insufficient as a matter of law. When reviewing a sufficiency
     claim the court is required to view the evidence in the light most
     favorable to the verdict winner giving the prosecution the benefit
     of all reasonable inferences to be drawn from the evidence.

     A motion for new trial on the grounds that the verdict is contrary
     to the weight of the evidence, concedes that there is sufficient
     evidence to sustain the verdict. Thus, the trial court is under no
     obligation to view the evidence in the light most favorable to the
     verdict winner. An allegation that the verdict is against the
     weight of the evidence is addressed to the discretion of the trial
     court. A new trial should not be granted because of a mere
     conflict in the testimony or because the judge on the same facts
     would have arrived at a different conclusion. A trial judge must
     do more than reassess the credibility of the witnesses and allege
     that he would not have assented to the verdict if he were a
     juror. Trial judges, in reviewing a claim that the verdict is
     against the weight of the evidence do not sit as the thirteenth
     juror. Rather, the role of the trial judge is to determine that
     notwithstanding all the facts, certain facts are so clearly of
     greater weight that to ignore them or to give them equal weight
     with all the facts is to deny justice.

Id. at 751-52 (citations, footnotes, and quotation marks omitted).

     D.D. maintains that “he was justified in biting [C.S.’] nose where [he]

believed such force was immediately necessary to protect himself against



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the assault by [C.S.]” Brief for D.D. at 10. D.D.’s argument is without merit

insofar    as   he   contests     the   sufficiency    of   the    evidence   that   the

Commonwealth presented in order to disprove his claim of self-defense. In

pursuing only a challenge to the weight of the evidence, D.D. concedes that

the Commonwealth offered evidence sufficient to sustain his adjudication for

aggravated assault.2       See Widmer, 744 A.2d at 752.              Consequently, our

review is limited to whether the juvenile court abused its discretion in

determining that D.D.’s delinquency adjudication was not contrary to the

weight of the evidence.

         At his adjudication hearing, D.D. argued that his assault on C.S. was

an act of desperation, which “he felt he needed to take to save his [own]

life.”    Notes of Testimony, 8/20/2014, at 32.                   In adjudicating D.D.

delinquent of aggravated assault, the juvenile court clearly indicated that it

found D.D.’s self-serving testimony to be incredible.              See id. at 34 (“You

know, I’m listening to this and thinking, ‘Well, if [D.D.] was able to bite

[C.S.’] nose and run away, and he had him subdued, why didn’t [D.D.,] prior

to that, get up and run away?’”).              On the other hand, the juvenile court

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2
      In his 1925(b) statement, D.D. asserted only that his “adjudication of
delinquency was against the weight of the evidence so as to shock one’s
sense of justice.” See D.D.’s Concise Statement of Errors Complained of on
Appeal, 2/2/2015, at 1 (emphasis added). Therefore, he has waived his
challenge to the sufficiency of the evidence. See Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b)
statement will be deemed waived.”); Pa.R.A.P. 1925(b)(4)(vii).



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found credible C.S.’ testimony that the “play fighting” escalated when D.D.

began choking him. Id. at 33.

      The record is devoid of any indication that the juvenile court acted in

an unreasonable or arbitrary manner. Nor has D.D. alleged that the juvenile

court acted with partiality, prejudice, bias, or ill will. The juvenile court, as

the fact-finder, was free to evaluate the testimony of the witnesses and to

determine    the   weight   that   should   be    assigned   to   the   evidence.

Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995). Accordingly,

DD.’s challenge to the weight of the evidence must fail.

      Order affirmed.

      Judge Bowes joins the memorandum.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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