J-S60005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.N., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: N.N., A MINOR
                                                     No. 1938 EDA 2014


                Appeal from the Dispositional Order June 30, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-JV-0001969-2013

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 20, 2015

        Appellant, N.N., a juvenile,1 appeals from the dispositional order

entered on June 30, 2014, after the juvenile court adjudicated him

delinquent for committing indecent assault.2         N.N. contends that the

evidence was insufficient to support his adjudication of delinquency.       After

careful review, we affirm.

        The facts which led to N.N.’s adjudication were summarized by the

juvenile court as follows:

              On May 13, 2013 at approximately 9:50[a.m.], Dawn
        Marie Geiger was teaching her classroom at Beaver Middle
        School, located at 5925 Malvern Avenue. Ms. Geiger asked the
        students to sit in close proximity, but requested for them not to
        sit behind her desk. N.N., then a thirteen-year-old student,
        refused and sat behind [Ms.] Geiger. N.N. had been a full-time
        student in Ms. Geiger’s class since September 7, 2012. N.N.
        reached through an opening in the back of Ms. Geiger’s chair and
        grabbed Ms. Geiger’s buttocks. Ms. Geiger was facing the front
____________________________________________


1
    N.N. was born in March of 2000.
2
    18 Pa.C.S. § 3126(a)(1).
J-S60005-15


      of the room, when she felt N.N.’s entire hand grab her buttocks.
      [Ms.] Geiger described a grabbing motion with her left hand
      extended palm up. The grab was not hard, but Ms. Geiger could
      feel the grab for two seconds. The grab did not leave any marks
      or bruises, and did not require any medical assistance.

            After the grab, Ms. Geiger stood up, turned around, and
      said to N.N. “Are you serious?” N.N. looked at Ms. Geiger and
      laughed. N.N. was the only student directly behind Ms. Geiger.
      There was another student behind her to the left, but said
      student was not within reaching distance. Ms. Geiger walked
      away, because as she was turned around facing N.N., another
      student hit her in the back of the head. Ms. Geiger walked to
      the board to compose herself. Two other students walked over
      and summoned assistance from another school official to begin
      the disciplinary process. The co-worker summoned another
      school official and the school police officer to prepare a report.

Juvenile Court Opinion (“JCO”), 1/5/15, at 2 (unpaginated).

      The juvenile court further summarized the relevant procedural history

of this case as follows:

           On May 20, 2013, Philadelphia police arrested [], N.N., and
      charged him with Simple Assault (18 Pa.C.S. § 2701 § A-M2),
      Indecent Assault (18 Pa.C.S. § 3126 § A1-M2), and Harassment-
      Subjecting Others to Physical Contact (18 Pa.C.S. § 2709 § A1-
      S).

             On August 13, 2013, after an adjudicatory hearing, this
      court issued a guilty verdict on the charge of Indecent Assault-
      M2, dismissed the remaining charges, and deferred adjudicating
      [N.N.] delinquent. On June 30, 2014, the Honorable Walter
      Olszewski adjudged N.N. delinquent. On July 9, 2014, N.N. filed
      Notice of Appeal to the Superior Court of Pennsylvania. On July
      31, 2014, Judge Olszewski committed N.N. to a Residential
      Facility – Mid-Atlantic Pennsylvania Child Case in Luzerne Sex
      Offenders/Fire Setters Program. On September 8, 2014, Judge
      Olszewski filed an Opinion in this matter. On October 14, 2014,
      the Superior Court remanded the matter to this court for filing of
      a Statement of Errors. On October 27, 2014, N.N. filed a
      Statement of Errors Complained of On Appeal.

JCO at 1 (unpaginated).


                                    -2-
J-S60005-15



      Herein, N.N. presents the following sole issue for our review:        “Was

not the evidence insufficient as a matter of law to prove indecent assault

where [N.N.], a thirteen year-old boy, grabbed his teacher’s bottom for two

seconds, in full view of his friends and classmates and then laughed when

confronted by his teacher?” N.N.’s Brief at 4.

      Our standard of review in a sufficiency of the evidence challenge is

well-settled:

      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
      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).

      Specifically, Appellant challenges the sufficiency of the evidence to

support his adjudication for indecent assault under 18 Pa.C.S. § 3126, which

provides, in relevant part, as follows:

      (a)   Offense defined.--A person is guilty of indecent assault if
            the person has indecent contact with the complainant,
            causes the complainant to have indecent contact with the
            person or intentionally causes the complainant to come
            into contact with seminal fluid, urine or feces for the
            purpose of arousing sexual desire in the person or the
            complainant and:




                                      -3-
J-S60005-15


            (1)   The person does so         without the    complainant’s
                  consent.

18 Pa.C.S. § 3126(a)(1). “Indecent Contact” is defined by section 3101 of

the Crimes Code as: “Any touching of the sexual or other intimate parts of

the person for the purpose of arousing or gratifying sexual desire in either

person.” 18 Pa.C.S. § 3101. N.N. acknowledges that the buttocks has been

recognized as an “intimate part.” N.N.’s Brief at 9, n.1.

      N.N. concedes that his action was worthy of punishment; however, he

contends that the evidence was insufficient to support an adjudication for

indecent assault where there was no evidence that the act was done “for the

purpose of arousing or gratifying sexual desire.”     N.N.’s Brief at 7.    N.N.

suggests that he rather “made an immature and impulsive decision to grab

his teacher for a laugh.” Id.

      We note the well-reasoned explanation provided by the juvenile court

in support of its finding of indecent assault:

      This court has no doubt that N.N. was the person that grabbed
      Ms. Geiger’s buttocks. N.N. was the only student within arm’s
      reach of Ms. Geiger. In addition, N.N. looked at Ms. Geiger and
      laughed, when confronted by Ms. Geiger. This court believes
      that N.N.’s conduct demonstrated his guilt. Clearly, Ms. Geiger
      did not consent to said touch.

      This court also has no doubt that N.N. did so for the purpose of
      sexual gratification. The touch was to Ms. Geiger’s sexual or
      intimate body part. N.N. was a thirteen-year-old male who
      touched the body of a twenty-six year-old female. This court
      believes that N.N. purposely situated himself behind Ms. Geiger,
      despite having been instructed not to do so, with the intent of
      touching her.     Ms. Geiger felt N.N.’s entire hand grab her
      buttocks for two seconds. This touching is more significant than
      a pinch or a slap to the buttocks, which may have been more


                                      -4-
J-S60005-15


       consistent with a prank or simple harassment. If the touch had
       been to any other part of Ms. Geiger’s body, the argument that
       N.N. was pulling a prank would have been more persuasive.

JCO at 3 (unpaginated). As we noted above, the juvenile court was free to

believe all, part, or none of the evidence, and we must defer to the court’s

credibility determinations. In re J.M., 89 A.3d at 691.

       In further support of the juvenile court’s finding that N.N. acted for the

purpose of sexual gratification, the record indicates that N.N. has been

receiving services since 2006, specifically for inappropriate sexual behavior.3

N.T. Delinquency Hearing, 8/13/14, at 21.         Additionally, N.N. has been

receiving multiple other services, including family therapy, as well as both

learning support and emotional support at school. Id. at 20-21.

       Based on our review of the facts in the light most favorable to the

Commonwealth as the verdict winner, we conclude there was sufficient

evidence to support the juvenile court’s finding that N.N. committed indecent

assault. Therefore, we uphold the order adjudicating N.N. delinquent.

       Order affirmed.




____________________________________________


3
 We note that N.N.’s counsel did not object to the court’s consideration of
N.N.’s prior history of inappropriate sexual behavior at the delinquency
hearing and does not raise any issues in regard to the same on appeal.



                                           -5-
J-S60005-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




                          -6-
