J-A02009-20


                                   2020 PA Super 131

    IN THE INTEREST OF: D.P., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.P., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 408 WDA 2019

                 Appeal from the Order Dated January 8, 2019
     In the Court of Common Pleas of Allegheny County Juvenile Division at
                        No(s): CP-02-JV-0001199-2018


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY SHOGAN, J.:                                     FILED JUNE 2, 2020

       Appellant, D.P., appeals from the January 8, 20191 dispositional order

entered in the Court of Common Pleas of Allegheny County, following his

adjudication of delinquency for indecent assault of a person less than thirteen

years old.2    The order became final on January 22, 2019, when the post-

disposition motion to reconsider was denied. After careful review, we affirm.

       Appellant was charged with involuntary deviate sexual intercourse,

aggravated indecent assault of a child, and indecent assault of a child, graded

as a third-degree felony,3 stemming from an incident between Appellant, then

fifteen years old, and M.M., his nine-year-old cousin, occurring at the home of
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1  We have corrected the caption to reflect that the appeal is from the
dispositional order.

2   18 Pa.C.S. § 3126(a)(7).

3   See Petition Alleging Delinquency, 6/22/18, at 3.
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A.P. on March 17, 2018. A.P. is M.M.’s aunt and Appellant’s biological aunt

and adoptive mother. N.T., 10/11/18, at 45, 101.

      After a day of shopping, M.M. and D.M., M.M.’s half-brother, spent the

night at A.P.’s house. N.T., 10/11/18, at 97–98. M.M. testified that D.M. and

Appellant came into the bedroom where she was sleeping, and Appellant tried

to remove her pants.      Although M.M. told Appellant to stop, Appellant

continued pulling down her pants. Id. at 46. Appellant slapped M.M. in the

face with his hand and with his “private part,” and touched M.M.’s “middle

part,” scratching her. Id. at 47–48. M.M. also observed Appellant “doing

something to her brother.” Id. at 47. Appellant then tried to put his “private

part” in M.M.’s “hole,” but she pushed him away. Id. at 49. Appellant and

D.M. left the room when the children heard A.P. get out of bed. Id.

      The next day, M.M. told Janet Lamb, a family friend, that Appellant had

hurt her and described the specifics of the assault. N.T., 10/11/18, at 23–26.

Ms. Lamb relayed the information to M.M.’s father, R.M. Id. at 27. Ms. Lamb

and Nicole Bender, R.M.’s fiancé, checked M.M. and observed “obvious scratch

marks” or a “bite mark” on her vagina. Id. at 27–29.

      Approximately two days later, the police became involved after M.M.

and R.M. disclosed the assault to a school counselor. N.T., 10/11/18, at 28–

29. On the responding officers’ recommendation, R.M. and Ms. Bender took

M.M. to Pittsburgh Children’s Hospital. Id. at 29. The Commonwealth and

defense counsel stipulated that M.M. was examined by Dr. Adelaide Eichman,


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who reported that M.M. had a “very small abrasion on her left outer labia

minora.” Id. at 68.

      The defense presented three witnesses at the October 11, 2018

adjudicatory hearing. D.M. testified that neither he nor Appellant went into

M.M.’s bedroom on the night in question, and he denied that he saw Appellant

doing anything inappropriate to his sister. N.T., 10/11/18, at 75–77. A.P.

also testified and maintained that she would hear if any of the children got up

and left their room and stated that she did not hear any such noises that night.

Id. at 99–100. Appellant denied that he was in M.M.’s room and molested

her on March 17, 2018, or on any other occasion. Id. at 110–112.

      At the conclusion of the hearing, the trial court adjudicated Appellant

delinquent of indecent assault of a child under thirteen, graded as a third-

degree felony. At the dispositional hearing on January 8, 2019, the trial court

ordered that Appellant be detained at the Shuman Juvenile Detention Center,

pending placement at Harbor Creek Youth Services for treatment, supervision,

and rehabilitation. Dispositional Order, 1/8/19, at unnumbered 1.          After

Appellant’s motion for reconsideration of the dispositional order was denied,

this timely appeal followed. Both the trial court and Appellant have complied

with Pa.R.A.P. 1925.

      Appellant presents one issue for review:

            Did the trial court impose an illegal sentence when it graded
      indecent assault of a person less than 13 years old at the felony
      three level, as the charging documents did not allege and the trial
      court did not state at the adjudicatory hearing that authorities were

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      proceeding under 18 Pa.C.S.A. § 3126(B)(3)(ii), which requires
      proof of a course of conduct of indecent assault?

Appellant’s Brief at 5.

      In Appellant’s 1925(b) statement, he phrased his claim of error as a

challenge to the sufficiency of the evidence to support an adjudication of

indecent assault graded as a third-degree felony. The trial court reviewed the

evidence and found M.M.’s testimony, including her representation that

Appellant had previously assaulted her in a manner similar to the conduct

under scrutiny, to be credible.      It therefore concluded that Appellant’s

adjudication of indecent assault, graded as a third-degree felony, was

sustainable. Trial Court Opinion, 5/1/19, at unnumbered 15.

      In his appellate brief, Appellant reframes the issue as one implicating

the legality of his sentence and submits that such questions are not subject

to waiver.   See Commonwealth v. Hoffman, 198 A.3d 1112, 1123 (Pa.

Super. 2018) (a claim that the court improperly graded an offense for

sentencing purposes implicates the legality of a sentence). He then contends

that the sentence was illegal because he was not on notice that the

Commonwealth was proceeding under 18 Pa.C.S. § 3126(b)(3)(ii), “which

requires proof of a course of conduct of indecent assault.” Appellant’s Brief at

14.

      Appellant directs our attention to this Court’s analysis and conclusion in

Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004). In Popow, the

appellant claimed that he was improperly sentenced for endangering the


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welfare of a child as a third-degree felony “where (a) neither the information

nor the evidence made out a course of conduct that would raise this charge

from a first degree misdemeanor to a third-degree felony and (b) where the

jury was not instructed to make a finding on course of conduct.” Id. at 15–

16. We agreed with the appellant, explaining that “in order to be graded as a

third-degree felony, the Commonwealth must allege in the information and

present evidence at trial of the additional factor of course of conduct, and the

jury must be instructed on such.”       Id. at 18 (internal quotation marks

omitted).

      The Commonwealth counters Appellant’s position that the holding in

Popow controls the instant case by contending that the grading of an offense

is not necessarily a non-waivable sentencing issue.      More specifically, the

Commonwealth contends that the Pennsylvania Supreme Court’s decision in

Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013), calls into question the

continued validity of Popow.

      Before we analyze the legality of the sentence issue, it is imperative to

note that Appellant did not receive a sentence arising from a criminal conviction.

Our Court has highlighted the distinction between adult and juvenile

proceedings, as follows:

            Under the Juvenile Act, juveniles are not charged with
            crimes; they are charged with committing delinquent
            acts. They do not have a trial; they have an
            adjudicatory hearing.        If the charges are
            substantiated, they are not convicted; they are
            adjudicated delinquent. Indeed, the Juvenile Act

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            expressly provides [that] an adjudication under its
            provisions is not a conviction of a crime. 42 Pa.C.S.A.
            § 6354(a). These are not insignificant differences or
            the transposing of synonyms. The entire juvenile
            system is different, with different purposes and
            different rules.
In re L.A., 853 A.2d 388, 393 (Pa. Super. 2004) (quoting In re S.A.S., 839

A.2d 1106, 1108–1109 (Pa. Super. 2003)). Nonetheless, for purposes of our

discussion on waiver and preservation of sentencing issues, we consider the

trial court’s dispositional order as the functional, if not technical, equivalent of

a sentence.     See In re J.G., 45 A.3d 1118, 1122 (Pa. Super. 2012)

(discussing legality of sentencing concepts in evaluating a juvenile court’s

authority to award restitution as part of its dispositional order).

      In Spruill, the appellee was charged with aggravated assault graded as

a first-degree felony (“F1”); however, the crime as outlined in the bills of

information encompassed the elements of both an F1 offense and second-

degree (“F2”) aggravated assault. After a nonjury trial, the trial court found

the appellee guilty of F2 aggravated assault. The appellee did not object to

the verdict nor did she object to the sentence premised on the conviction

graded as an F2. Spruill, 80 A.3d at 455–456.

      On appeal to this Court, the appellee asserted that the trial court erred

when it found her guilty of aggravated assault because after filing the

information, the Commonwealth abandoned the F2 charge. Spruill, 80 A.3d

at 456. The Commonwealth argued that the appellee waived that issue by

failing to object before the trial court and, in any event, it had not abandoned


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the F2 charge.    Id.    We summarily rejected the Commonwealth’s waiver

argument, finding that we were presented with a non-waivable legality of

sentence issue.    Id. at 457.       On the merits, we concluded that the

Commonwealth abandoned the F2 aggravated assault charge and vacated the

appellee’s conviction. Id. at 458.

     The Commonwealth sought review in the Pennsylvania Supreme Court

limited to the “question of whether the claim upon which the [Superior Court]

panel granted relief was non-waivable because it implicated the legality of

appellee’s sentence.”    Spruill, 80 A.3d at 458. The High Court, however,

declared that the matter before it was “not whether a sentencing claim

implicates the ‘legality’ of the sentence, so as to negate issue preservation

principles; rather we have the more elemental question of whether the claim

posed is a sentencing claim at all.”    Id. at 461.   The Spruill Court then

determined that the “claim sustained by the Superior Court involved [the]

appellee’s underlying conviction at trial, not the sentence the trial court

imposed four months later.” Id. Accordingly, the Court concluded that the

appellee’s failure to object to the verdict was not excused by the illegal

sentence doctrine. Id.

     After reaching this conclusion, the Court offered some guidance for

deciding whether a claim involves the conviction and not the sentence. One

pertinent inquiry should be whether the record suggests a fatal problem with

the sentence.    Spruill, 80 A.3d at 462.    The Supreme Court additionally


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observed    that    “fact-driven   matters     are   particularly   ill-suited   to

characterization as implicating ‘sentencing illegality’ . . . where . . . the claim

depends upon particulars of the conviction.” Id.

      We do not read Spruill as a sweeping nullification of cases holding that

the grading of an offense implicates the legality of the sentence. Rather, the

decision directs reviewing courts to carefully scrutinize the substance of these

purported non-waivable claims to ascertain whether the actual nature of the

challenge is to the sentence or the conviction.

      Applying the teaching of Spruill to the matter before us, it is clear that

Appellant is contesting his adjudication of delinquency for indecent assault of

a child, graded as a third-degree felony, and not the dispositional order. In

support of his position that his sentence was illegal under Popow, Appellant

does not reference the dispositional order in any regard. Thus, the record

does not demonstrate a fatal flaw in the sentence itself.            Additionally,

Appellant’s argument is plainly fact-driven as he is contesting whether he was

on notice that the Commonwealth was proceeding under 18 Pa.C.S.

§3126(b)(3)(ii), and whether there was sufficient evidence to demonstrate

the “course of conduct” necessary to justify a third-degree felony grading.

We, therefore, conclude that Appellant has not raised a non-waivable illegal

sentencing issue before this Court. Accordingly, other than the portion of his

appellate argument regarding the sufficiency of the “course of conduct”

evidence, Appellant has waived review of his allegation regarding lack of


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notice because he did not object below and failed to present the issue in his

1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in

the Statement . . . are waived.”); Commonwealth v. Lord, 719 A.2d 306,

309 (Pa. 1998) (establishing a bright-line rule that “[a]ny issues not raised in

a 1925(b) statement will be deemed waived.”).

       Regarding Appellant’s claim that the Commonwealth’s evidence was

insufficient to demonstrate that he engaged in a course of conduct of indecent

assault, the trial court found as follows:

      M.M. testified about being subjected to sexual maltreatment by
      [Appellant] prior to this incident in question stating twice during the
      hearing, which gave rise to a clear course of conduct that would
      require grading this at a felony three. M.M. testified to the past
      conduct as follows:

            Whenever he used to do this to me whenever I was very
            little, like a little toddler when I used to come over, and
            he used to like—he did the same thing to me and he told
            me not to tell anyone because he like—(unintelligible)—
            he said he’d do it again, but he obviously did it again
            and again, and I didn’t tell anyone. But I like—I didn’t
            like it the last time, what he did to me so I told [an
            adult]. Id. at 50.

            He said I have a hole in my body, but I knew it was like
            probably located in my private part because one time he
            —whenever I was over his house like a different time,
            he stuck his finger inside of me. I don’t know what it
            was but it felt very weird…. That happened when I was
            younger, but I don’t—I can’t remember the date ... he
            threatened me that he’d do it again ... I really didn’t
            like it so I told. Id. at 66.

Trial Court Opinion, 5/1/19, at unnumbered 13.




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       The standard of review of a sufficiency of the evidence claim is to

determine whether, “when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt.” Commonwealth v. Akhmedov,

216 A.3d 307, 322 (Pa. Super. 2019) (citation omitted).               Furthermore, a

course of conduct is established with evidence of “multiple acts over time.”

Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super. 2014).

       We agree with the trial court that M.M.’s specific testimony established

Appellant’s course of conduct of indecent assault.4 Without prompting from

the Commonwealth, M.M. described earlier occasions when [Appellant]

sexually assaulted her “again and again.”              N.T., 10/11/18, at 50.     This

testimony established the “multiple acts over time” that a course of conduct

requires.    Kelly, 102 A.3d at 1031.               Accordingly, Appellant’s claim of

insufficiency of the evidence does not warrant relief.

       For the above reasons the order of disposition is affirmed.              Order

affirmed.




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4 We note that there was also testimony about questionable activity between
Appellant and D.M. on the same night as the assault on M.M. Ms. Lamb
recounted that M.M. told her that “[Appellant] also fondled [D.M.] in one way
or another which I didn’t go into any detail with her.” N.T., 10/11/18, at 23.
Additionally, M.M. revealed at trial that “[Appellant] was also like touching
my brother in his middle part, too.” Id. at 49.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2020




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