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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                      :      IN THE SUPERIOR COURT OF
N.J.W., A MINOR                          :            PENNSYLVANIA
                                         :
APPEAL OF: COMMONWEALTH OF               :          No. 3752 EDA 2016
PENNSYLVANIA                             :


            Appeal from the Order Entered November 21, 2016,
             in the Court of Common Pleas of Monroe County
             Criminal Division at No. CP-45-JV-0000192-2016


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 18, 2017

     The Commonwealth appeals from the November 21, 2016 order

entered in the Court of Common Pleas of Monroe County that reversed the

trial court’s delinquency adjudication and dismissed all charges against

N.J.W., a minor. After careful review, we affirm.

     The trial court set forth the following:

                 On September 22, 2016, the Commonwealth
           filed  a    delinquency    petition against   N.J.W.
           (“Juvenile”), alleging that on September 20, 2016,
           he exposed himself, masturbated and ejaculated
           during afterschool detention at Pleasant Valley High
           School.    The petition charged Juvenile with two
           counts of Indecent Exposure,[Footnote 1] two counts
           of Open Lewdness,[Footnote 2], and three counts of
           Disorderly Conduct.[Footnote 3]

                 [Footnote 1] 18 Pa.C.S.A. § 3127(a)[.]
                 [Footnote 2] 18 Pa.C.S.A. § 5901[.]
                 [Footnote 3] 18 Pa.C.S.A. § 5503(a)(3).
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                We held an adjudication hearing on October 7,
          2016. The Commonwealth presented two female
          witnesses, I.F. and A.D. Both witnesses testified
          that there were four female students including
          themselves, Juvenile, and teacher Daisy Genovese in
          the classroom at the time of the alleged incident.
          The classroom was arranged in several clusters of
          2-5 desks pushed together. Each student sat at a
          separate cluster. Genovese’s desk was located in
          the back corner of the classroom, and a chalkboard
          was     located     in    the    front    of    the
          classroom.[Footnote 4]

                [Footnote 4]    Photographs of the
                classroom were marked for identification
                purposes, but never received into
                evidence.

                I.F. testified that she sat at a cluster furthest
          away from Genovese’s desk by the chalkboard.
          From her vantage point, I.F. could see everyone in
          the room. A.D. also sat in the front of the classroom
          in the cluster directly across from I.F. Juvenile sat in
          the back of the classroom 10-12 feet across from
          Genovese’s desk and facing I.F. and A.D. The other
          two female students sat with their backs toward
          Juvenile.

                With approximately twenty minutes remaining
          in detention, I.F. and A.D. noticed Juvenile staring at
          them while masturbating with his penis exposed.
          Juvenile periodically stopped masturbating and
          covered his penis whenever Genovese left her desk
          to walk around the room. Both students testified
          that Juvenile finally stopped when he ejaculated with
          five minutes remaining in detention; however, their
          versions differed. I.F. saw [sic] Juvenile ejaculated
          on himself. Conversely, A.D. stated that Juvenile
          ejaculated on parts of the desk and himself.

                Both students never alerted Genovese that
          Juvenile was masturbating even when they were
          given the opportunity to tell Genovese discreetly.
          Specifically, after Juvenile and the other two female


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          students left the classroom, I.F. and A.D. returned to
          retrieve I.F.’s cellphone when only Genovese was in
          the room. I.F. testified that she did not mention
          Juvenile’s actions to Genovese because she was still
          in shock by what she saw. A.D. stated that she did
          not tell Genovese because she was scared and
          disgusted. Five minutes after leaving Genovese’s
          classroom, I.F. testified that she “saw the Dean of
          Students and decided to tell him what had
          happened.”       I.F. and A.D.’s testimony never
          identified the Dean of Students by name or what
          they told this person.

                 In his defense, Juvenile called Genovese to
          testify. The teacher testified that she had 28 years
          of teaching experience and was familiar with Juvenile
          and the female witnesses. Genovese stated that she
          had a clear view of Juvenile throughout detention;
          however, she was not watching Juvenile the entire
          time. In addition, there was no semen found in the
          classroom. Moreover, Genovese indicated that she
          was interacting with A.D. throughout detention and
          her demeanor was normal.

                In a close call, we found the female students’
          testimony     credible   and   adjudicated  Juvenile
          delinquent for one count each of indecent exposure,
          open lewdness, and disorderly conduct.          We
          dismissed       the     remaining     charges    as
          duplicative.[Footnote 5]

                [Footnote 5] Prior to announcing our
                decision, the Commonwealth withdrew
                one count of disorderly conduct.

               The    Monroe  County    Juvenile Probation
          Department completed a social summary on
          Juvenile. The summary states:

                It is believed that a more thorough
                investigation may have been needed in
                this case as several questions have
                arisen while speaking to school staff that
                were involved in this incident, which in


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                turn has led this officer to question the
                credibility of the individuals involved in
                this case . . . [I.F. and A.D.] did
                approach an Assistant Principal following
                detention that day, and their report to
                him at that time was that [Juvenile] was
                rubbing himself outside of his pants, not
                the report that they later provided to the
                Trooper.

                Unfortunately, this Court was not made
                aware of some of the above mentioned
                facts, and therefore, this case was
                decided on the creditability [sp] of the
                witnesses and their testimonies given
                that day.

          Social Summary Report P. 10.

                Following Juvenile’s disposition hearing on
          November 14, 2016, he was placed on probation for
          a minimum period of one year.

                Juvenile filed a timely post-dispositional motion
          to reconsider and dismiss the charges claiming our
          adjudication decision was against the weight of the
          evidence. The motion premised the contradictory
          testimony of I.F. and A.D. regarding how Juvenile
          allegedly ejaculated.

                We held a reconsideration hearing on
          November 21, 2016.         Juvenile underscored the
          discrepancies between I.F. and A.D.’s adjudication
          hearing testimony and Juvenile’s social summary
          that detailed the story I.F. and A.D. told Assistant
          Principal David Pacchioni immediately following the
          incident. Juvenile stated that he was never aware of
          Pacchioni’s involvement in the case prior to the social
          summary. Juvenile’s attorney asserted that he went
          to the school to investigate the incident prior to the
          adjudication hearing, and the school’s principal never
          mentioned Pacchioni’s association in the matter. The
          principal only disclosed Genovese’s involvement.
          Juvenile’s attorney indicated that Pacchioni was


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          available by phone to testify that what the female
          students told him was contradictory to their
          adjudication hearing testimony.[Footnote 6]

                [Footnote 6] Juvenile’s attorney stated
                that Pacchioni recently changed school
                districts and was unable to attend the
                reconsideration hearing, but available by
                phone.

                 We asked the juvenile probation officer if his
          investigation in completing the social summary
          showed anything different from what was said at the
          adjudication hearing. The juvenile probation officer
          informed the court that I.F. and A.D. told a very
          different story to Pacchioni right after the incident.
          Specifically, I.F. and A.D. told Pacchioni that Juvenile
          was rubbing himself outside of his pants. They
          never mentioned to Pacchioni that Juvenile exposed
          his penis, masturbated, or ejaculated. The probation
          officer stated that the girls’ story changed to include
          exposure and ejaculation only after speaking with
          police later that evening.

                The Commonwealth asked for a re-hearing in
          the case.        The assistant district attorney
          representing     the    Commonwealth      at    the
          reconsideration hearing never read Juvenile’s social
          summary     and    was    unaware    of Pacchioni’s
          involvement in the case.[Footnote 7]

                [Footnote 7]      The Assistant District
                Attorney at the Reconsideration Hearing
                also represented the Commonwealth at
                Juvenile’s adjudication hearing.

                We     noted   our    reservations  after the
          adjudication hearing that Juvenile was delinquent
          beyond a reasonable doubt. We acknowledged the
          rarity of the situation, reversed our finding of
          delinquency, and dismissed all charges based on the
          revelations in Juvenile’s social summary. There was
          no    objection raised by the          Commonwealth
          throughout the reconsideration hearing.


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Trial court opinion, 1/11/17 at 1-6 (citations to notes of testimony omitted;

ellipses and brackets contained in original social summary report).

      The record reflects that following entry of the order that reversed the

finding of delinquency and dismissed all charges against N.J.W., the

Commonwealth filed a timely notice of appeal. The trial court then ordered

the Commonwealth to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely complied.

Thereafter, the trial court filed its Pa.R.A.P. 1925(a) opinion.

      The   Commonwealth raises the         following issue       for   our   review:

“Whether the trial court erred in sua sponte reversing its finding of

delinquency    in   this   matter   and   dismissing   all   of     the   charges?”

(Commonwealth’s brief at 3.)

      Preliminarily, we note that the trial court and N.J.W. contend that the

Commonwealth waived this issue on appeal for failure to raise it below. Our

review of the record reflects that following N.J.W.’s adjudication of

delinquency and disposition, N.J.W. filed a timely optional post-dispositional

motion pursuant to Pa.R.J.C.P. 620(1) requesting reconsideration of the

delinquency adjudication and dismissal of all charges as against the weight

of the evidence. (N.J.W.’s motion for reconsideration, 11/15/16.) The trial

court held a hearing on N.J.W.’s motion.

      At that hearing, N.J.W. challenged the weight of the evidence based on

teacher Daisy Genovese’s testimony. (Notes of testimony, 11/21/16 at 3-4.)


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N.J.W. also advanced an argument based on the social summary report that

the Monroe County Juvenile Probation Department completed after N.J.W.’s

adjudication that revealed inconsistencies in I.F.’s and A.D.’s versions of the

incident. (Id. at 4-6.) Specifically, I.F. and A.D. provided one account of

the incident to the former assistant principal of the school and another

account to police. (Id. at 6-7.) In response, Andrew Kroeckel, the attorney

representing the Commonwealth at the hearing, stated that he “had no

notice of this” and did not “even know who [the former assistant principal]

is.”1 (Id. at 4-5.) Attorney Kroeckel also stated that the information was

“not in the motion,” and “it’s not appropriate for it to be raised now.” (Id.

at 5.) At this point, the juvenile probation officer, who was identified in the

transcript as “Mr. Sheller,” appeared at the hearing and confirmed the

inconsistent reports provided by I.F. and A.D. (Id.)

      Following    Juvenile    Probation    Officer    Sheller’s   statements,

Attorney Kroeckel requested a recess of approximately one week to speak

with the former assistant vice principal, as well as I.F. and A.D., to “try to

figure out what’s going on, if anything.”   (Id. at 7.)   The trial court then

stated:

            When the hearing was held back on October 7th of
            this year, I found [N.J.W.] delinquent of the charges.
            But I remember it was not a slam dunk, in my
            opinion. The rule, of course, is delinquent beyond a

1
  Attorney Kroeckel acknowledged that the Commonwealth attorney who
attended N.J.W.’s disposition read the social summary report. (Notes of
testimony, 11/21/16 at 5.)


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              reasonable doubt, but I began to have doubts after
              the decision.

              And in reading the pre-sentence -- the social
              summary and what has developed, I can’t say in all
              honesty that [N.J.W.] should have been found
              delinquent beyond a reasonable doubt for these
              charges.

              It’s a rare thing when you make a finding and then
              reconsider reversing your finding a month or two
              later. But in this case, I think it’s the right thing to
              do. So I am going to make an order[.]

Id. at 7-8.

      The trial court then entered an on-the-record order, which was later

reduced to writing and entered on the docket, that reversed the delinquency

finding and dismissed the charges against N.J.W. (Id. at 8.) After entering

that on-the-record order, the following took place:

              THE COURT: If the Commonwealth wishes to appeal
              that decision, then --

              [N.J.W.’S COUNSEL]: Thank you, Your Honor.

Id.

      The proceedings then concluded. Presently, the trial court and N.J.W.

contend that the Commonwealth waived the issue of whether the trial court

erred in sua sponte reversing the delinquency finding and dismissing the

charges against N.J.W. on appeal because it failed to raise the claim with the

trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).        After a close

reading of the hearing transcript, however, we afford the Commonwealth the


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benefit of the doubt because it did object to the trial court’s consideration of

the social summary report as outside the scope of the motion for

reconsideration as that motion only challenged the weight of the evidence.

It follows then that because the trial court based its reversal and dismissal

on its consideration of the social summary report, and the Commonwealth

objected to such consideration, that the Commonwealth preserved the issue

it raises on appeal. We will, therefore, address the Commonwealth’s claim.

      In its brief, the Commonwealth first argues that the trial court lacked

authority to sua sponte reverse its finding of delinquency by relying on

cases that hold that the reconsideration procedure set forth in 42 Pa.C.S.A.

§ 5505, which provides for modification or rescission of any order with

certain exceptions, does not authorize a trial court to change a previously

recorded guilty verdict to a not guilty verdict.    (Commonwealth’s brief at

10.) The Commonwealth then argues that although Pa.R.Crim.P. 704(B)(1),

which outlines certain procedures to be followed at the time of sentencing,

permits a trial court to entertain an oral motion for arrest of judgment under

extraordinary circumstances when justice requires, that rule provides no

such authority absent an oral motion.           Therefore, according to the

Commonwealth, because N.J.W. failed to make an oral motion for arrest of

judgment at N.J.W.’s motion for reconsideration hearing, the trial court “did




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not conduct the appropriate review.”2 (Id. at 11.) The Commonwealth then

reiterates its position that once the verdict was entered, the trial court had

no authority over the case. (Id.) In so doing, the Commonwealth relies on

criminal cases wherein post-verdict courts were found to have abused their

discretion by reweighing the evidence and then changing verdicts. (Id. at

11-14.)

      The Commonwealth’s argument is misguided. It is well-settled that an

adjudication of delinquency is not a conviction. See 42 Pa.C.S.A. 6354(a)

(“[a]n order or disposition or other adjudication in a proceeding under [the

Juvenile Act] is not a conviction of crime”); see also Commonwealth v.

Hale, 128 A.3d 781, 584 (Pa. 2015.) Indeed,

            this Court has expressly recognized that juvenile
            proceedings are not criminal proceedings. 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 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.




2
  Contrary to the Commonwealth’s interpretation of Pa.R.Crim.P. 704(B)(1),
the rule provides that “[u]nder extraordinary circumstances, when the
interests of justice require, the trial judge may, before sentencing, hear an
oral motion in arrest of judgment, for a judgment of acquittal, or for a new
trial.” Pa.R.Crim.P. 704(B)(1).


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In re L.A., 853 A.2d 388, 393 (Pa.Super. 2004) (internal citations omitted;

brackets in original).

      The purpose of the Juvenile Act is:

                   [c]onsistent with the protection of the
                   public interest, to provide for children
                   committing delinquent acts programs of
                   supervision, care and rehabilitation which
                   provide balanced attention to the
                   protection of the community, the
                   imposition of accountability for offenses
                   committed and the development of
                   competencies to enable children to
                   become responsible and productive
                   members of the community.

            42 Pa.C.S.A. § 6301(b)(2). “This section evidences
            the Legislature’s clear intent to protect the
            community while rehabilitating and reforming
            juvenile delinquents.” In the Interest of J.C., 751
            A.2d at 1181.

Id.

      Therefore, the Commonwealth’s argument necessarily fails because it

rests on the flawed premise that N.J.W. was convicted of crimes in a criminal

proceeding when the reality is that N.J.W. was adjudicated delinquent for

committing delinquent acts. Our analysis, however, does not end there.

      Following his adjudication and disposition, N.J.W. chose to file a

post-dispositional motion for reconsideration challenging the weight of the

evidence pursuant to Pa.R.J.C.P. 620(1).           The purpose of Rule 620 “is to

promote the fair and prompt resolution of all issues relating to admissions,

adjudication,   and      disposition”   of   the    delinquency   matter.    See



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Pa.R.J.C.P. 620, cmt.   At the hearing, N.J.W. also presented the social

summary report, which was prepared after the adjudication. The trial court

deemed the social summary report to be “after-discovered evidence.” (Trial

court opinion, 1/11/17 at 7.)     We note that although Pa.R.J.C.P. 620(F)

provides that “[a] motion for a new adjudication on the grounds of after-

discovered evidence shall be filed in writing promptly after such discovery,”

because N.J.W. sought a reversal of the delinquency finding and dismissal of

the charges, as opposed to a new adjudication, nothing in the rule prohibited

him from presenting the social summary report to the trial court at the

motion for reconsideration hearing.   Moreover, “[j]uvenile proceedings, by

design of the General Assembly, have always lacked much of the trappings

of adult criminal proceedings.”     See Hale, 85 A.3d at 584 (citations

omitted). “[J]uvenile hearings [are] non-adversarial, informal proceedings,

where the strict rules of evidence and procedure [are] relaxed and in which

the judge could analyze the child’s needs and fashion the best possible

remedy.” Id. (citations omitted).

     Here, the trial court reconsidered the facts of the case and also

considered the social summary report to arrive at the conclusion that the

after-discovered evidence   “debunked        I.F.   and   A.D.’s   testimony”, the

Commonwealth failed to prove N.J.W. delinquent beyond a reasonable

doubt, and that the interest of justice required that the adjudication be

reversed and the charges dismissed. (See notes of testimony, 11/21/16 at



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7-8; see also trial court opinion, 1/11/17 at 6-7.) Our review of the record

compels the conclusion that the trial court effectuated the purpose of the

Juvenile Act, which is “to provide for the just determination of every

delinquency proceeding.” See Pa.R.J.C.P. 101(A).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2017




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