J-A15013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: M.A., A JUVENILE             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: M.A., A JUVENILE

                                                    No. 1450 EDA 2013


               Appeal from the Dispositional Order May 3, 2013
             In the Court of Common Pleas of Montgomery County
              Juvenile Division at No(s): CP-46-JV-0000570-2012


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.:                            FILED JULY 29, 2014

        Appellant, M.A., a juvenile, appeals from the dispositional order

entered May 3, 2013, after the juvenile court adjudicated him delinquent for

committing harassment1 and ethnic intimidation.2 We affirm.

        In

in the 9th grade at Perkiomen Valley High School.       On March 15, 2013,

Appellant came into health class with three swastikas drawn on his left hand

and sat down next to the victim, who is Jewish. Thereafter, the victim left to

go to the bathroom. When the victim returned, he observed that someone

had drawn swastikas on every page of his health class packet.           When

confronted by school officials, Appellant admitted that he drew the swastikas
____________________________________________


1
    18 Pa.C.S.A. § 2709(a)(4).
2
    18 Pa.C.S.A. § 2710.
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aware that the swastika was the symbol used by Adolf Hitler and that it was

used during a period in which millions of Jewish people were killed, but that

he had forgotten the victim was Jewish.            Appellant received a 5-day in-

school suspension because of the incident. On the first day of the in-school

suspension, school officials called the state police because students began to

harass the victim.

        On March 27, 2013, Appellant was charged with ethnic intimidation,

criminal mischief,3 and two counts of harassment.              On March 29, 2013, a

detention hearing was conducted, after which the juvenile court judge

determined that Appellant was a danger to the community and ordered him

detained    pending     the   adjudication     hearing.   On      April   12,   2013,   an

adjudication    hearing     was    conducted,    after    which     the   juvenile   court

adjudicated Appellant delinquent on the charges of harassment and ethnic

intimidation. This timely appeal followed.

        On appeal, Appellant raises the following issues for our review:




        announcing in open court that she was Jewish and proceeded to
        find the juvenile




____________________________________________


3
    18 Pa.C.S.A. § 3304.



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       Did the juvenile court err when it denied the juvenile the

       adjudication and sanctions for lying to challenge his credibility?


       delinquent with respect to the offences of ethnic intimidation and
       harassment supported by legally sufficient evidence of record?



       Appellant first claims that the juvenile court judge violated his due

process rights when she announced in open court that she was Jewish and

proceeded to detain Appellant prior to his adjudication hearing. 4 Appellant

                                                              f bias towards him




       Preliminarily, we note that Appellant did not raise an objection to the

                                   ther at the time they were made during the



Status filed April 2, 2013. Rather, he raises this claim for the first time on

appeal.    Pennsylvania Rule of Appellate Procedure 302(a) provides that




____________________________________________


4

repeatedly challenges his detention, he assures this Court in a footnote that
                                                                      -
detention decis
n.2. We therefore limit our discussion of this issue to that of the juvenile




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Coulter v. Ramsden, --- A.3d ---, ---, 2014 WL 2787216 at *8 (Pa. Super.,

filed June 20, 2014) (citation omitted). As Appellant failed to raise his claim

of alleged juvenile court bias and deprivation of due process rights in the

court below, we are constrained to conclude that this issue is waived.

      Even if we were to address this issue, however, it would not merit




or prejudice:

      So, at the end of the day, when all the facts come out from both
      sides

      You should only know, really know about the Holocaust and to

      drawing it and bringing it to bear with respect to someone who
      has suffered in their heritage.
                                                            There were
      millions of people that were not Jewish that were devastated by
      the Holocaust, murdered, slaughtered, and affected and
      impacted by the Holocaust.
                                                 . Not at all.

N.T., Detention Hearing, 3/29/13 at 18-19 (emphasis added). Clearly, the

juvenile court judge took great pains to make it clear that her heritage was

not a factor in detaining Appellant. There is simply no evidentiary support

                                           s issue is wholly without merit.

      Appellant next argues that the juvenile court erred in granting the



disciplinary record for impeachment purposes pursuant to Pa.R.E. 608(b)(1).


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J-A15013-14




                            Id.



court and will be reversed only upon a showing that the trial court clearly

                          In re F.P., 878 A.2d 91, 93 (Pa. Super. 2005)

(citation omitted).   Pennsylvania Rule of Evidence 608(b)(1) provides that



supported by cross-examination or extrinsic evidence concerning specific



(relating to evidence of conviction of crime). Pa.R.E. 608(b)(1).

      Appellant argues that while the high school disciplinary report

constitutes

608(b)(1), the juvenile court should have admitted the report under Rule



any witness, evidence that the witness has been convicted of a crime,

whether by verdict or by plea of guilty or nolo contendere, must be admitted




may be used to impeach the credibility of a witness if conviction of the



609(d).

      In essence, Appellant would have us equate a disciplinary action for

lying initiated by a school administrator to an adjudication of delinquency for

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an offense involving dishonesty or false statement.                 This argument is

meritless on its face. Rule 609 clearly limits the type of evidence with which

                                                                    o convictions or

adjudications of delinquency. See, e.g., Commonwealth v. Chmiel, 585

Pa. 547, 889 A.2d 501, 534-534 (2005) (trial court properly precluded

defense from questioning witness on a burglary he had admitted committing,

but for which he was never convicted).              The use of any other specific

instance of conduct for impeachment purposes is strictly prohibited under

Pa.R.E. 608(b)(1).     Appellant cannot and does not seriously argue that a

high school disciplinary report constitutes either a conviction or adjudication

of delinquency. Therefore, the trial court properly precluded the introduction

of the report for impeachment purposes.



abridged his constitutional right to confront and cross-examine adverse

                                                                                    e

paradoxical proposition that the exclusion of patently inadmissible evidence

constitutes   a   violation   of   his   constitutional   rights.    We   decline   to

countenance such a notion here.

      Lastly, Appellant argues that there was insufficient evidence to support

his adjudication of delinquency on the charges of harassment and ethnic




      When a challenge to the sufficiency of the evidence is made, our
      task is to determine whether the evidence and all reasonable
      inferences drawn therefrom, when viewed in the light most

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J-A15013-14


       favorable to the Commonwealth as the verdict winner, were
       sufficient to enable the fact-finder to find every element of the
       crime charged beyond a reasonable doubt. In applying the above
       test, we may not weigh the evidence and substitute our
       judgment for the fact-finder. Moreover, we must defer to the
       credibility determinations of the [juvenile] court, as these are
       within the sole province of the finder of fact. The trier of fact,
       while passing upon the credibility of witnesses, is free to believe
       all, part, or none of the evidence.

In re J.M., 89 A.3d 688, 691 (Pa. Super. 2014) (citation omitted).

       The Crimes Code defines the offense of harassment, as is relevant to

this case, as follows:

       A person commits the crime of harassment when, with the intent

       communicates to or about such other person any lewd,
       lascivious, threatening or obscene words, language, drawings or
       caricatures[.]

18 Pa.C.S.A. § 2709(a)(4).

                                      Commonwealth v. Cox, 72 A.3d 719, 721

(Pa. Super. 2013) (citation omitted)



papers. It is also apparent that, in this context, the swastika was utilized as

a threatening symbol to an individual of the Jewish faith. 5 Appellant testified


____________________________________________


5
    Appellant claims that the swastika is not a threatening symbol but is



completely disingenuous.          Notably, Appellant offers no explanation for




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J-A15013-14



school in September 2012. The principal at Perkiomen High School testified

that Appellant told her following the incident that he was aware the swastika

was a symbol of the Nazi Party and that millions of Jewish people were killed

under Nazi rule.      Id. at 15.      Thus, Appellant knew of the history of the

swastika    and    communicated       to   the    victim   the   threatening drawing.

Additionally, the totality of the circumstances permits the inference that



harass, annoy or alarm the victim.             The victim testified that in December

2012 the Appellant looked at him and spat on the floor of the classroom

during a discussion of Hanukkah in English class.                Id. at 39-40.   This

testimony not only establishes that Appellant was aware that J.L. was

Jewish, but is also suggestive that he harbored animosity towards the Jewish

faith and J.L. in particular.6 Based on the foregoing, we do not hesitate to

find the evidence was sufficient to support the adjudication of harassment.

       We    are

adjudication of ethnic intimidation. Section 2710 of the Criminal Code


____________________________________________


6
  Although Appellant offered testimony contrary to that of the victim at the
adjudication hearing, we reiterate that the juvenile court was free to believe
all, part, or none of the evid
determinations. See In re B.T., 82 A.3d 431, 435 (Pa. Super. 2013) (where

                                                                            ill not be




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J-A15013-14




intention toward the race ... of another individual or group of individuals, he

commits an offense under any other provision of this article ... with respect



a conviction for ethnic intimidation, the Commonwealth must prove that the

def

                                        Commonwealth v. Miller, 613 Pa.

584, 594, 35 A.3d 1206, 1212 (2012). In this regard, Appellant argues only

that if the adjudication for the predicate offense       here, harassment

cannot stand, than the ethnic intimidation adjudication must also fail. As we

have already determined that the adjudication of harassment was proper,

this claim fails.

      Dispositional order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2014




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