J-S41021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: G.G., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 414 MDA 2019

         Appeal from the Dispositional Order Entered January 23, 2019
       In the Court of Common Pleas of Berks County Juvenile Division at
                        No(s): CP-06-JV-0000473-2018


BEFORE:      LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 05, 2019

       G.G. (Appellant) appeals from the dispositional order1 entered after the

juvenile court adjudicated Appellant delinquent of six offenses: two counts

each of involuntary deviate sexual intercourse with a child and criminal

solicitation to commit involuntary deviate sexual intercourse; and one count

each of rape of a child and indecent assault. Upon review, we affirm.

       The juvenile court related the factual and procedural background as

follows:

       This case concerns [Appellant’s] perpetration of certain sex crimes
       against [the victim]. We note at the outset that none of the
       witnesses testified as to the exact dates these crimes occurred,
       but the parties stipulated that they took place between November
       1, 2017, and the middle of January 2018. (N.T.p.107). [The
____________________________________________


1 In juvenile proceedings, the final order from which a direct appeal may be
taken is the order of disposition, entered after the juvenile is adjudicated
delinquent. See Commonwealth v. S.F., 912 A.2d 887, 888-89 (Pa. Super.
2006).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     victim] was . . . either five (5) or six (6) years old, depending on
     when the offenses occurred. [Appellant] was fifteen (15) years
     old during this time period.

     [The victim] lived . . . with her Mother [and] her Mother’s
     boyfriend . . . On weekends [the victim] would stay at her Father’s
     house . . . where he lived with his wife and her son, [Appellant].

     [The victim] and [Appellant] would play together in [Appellant]’s
     . . . bedroom. At one point, [the victim] and [Appellant] engaged
     in what [the victim] called “sexing.” They both removed their
     pants and [Appellant] coerced [the victim] into performing oral
     sex on him by threatening to tell her parents that she was bad.
     [The victim] engaged in oral sex with [Appellant] at least three
     different times, usually when [Appellant] babysat [the victim] and
     there were no adults in the house.          On one occasion, at
     [Appellant]’s insistence, [the victim] and [Appellant] removed all
     of their clothing and [Appellant] had vaginal and anal intercourse
     with [the victim].

     [Appellant] was friends with three (3) brothers, A.O., J.V., and
     E.V. ages 12, 11 and 6 respectively when the following events
     occurred. On weekends the boys would visit [Appellant] at his
     home. During one of these visits [Appellant] and the brothers
     were in [Appellant]’s bedroom playing a game. [The victim]
     entered and [Appellant] pulled down her pants and she performed
     oral sex on him. [Appellant] then told her to perform oral sex on
     A.O. and J.V. which she did. A.O. said that [Appellant] made him
     engage in oral sex with [the victim]. J.V. said that [Appellant]
     told him if he told anyone what had happened he would “get” him.

     After the above incidents took place, [the victim] told her Mother
     what had happened. [The victim] later met with a representative
     of the Children’s Alliance center where her testimony about these
     matters was recorded on a digital video disc which was later
     viewed at the adjudication hearing.

     On October 2, 2018, the Commonwealth filed a petition alleging
     delinquency, charging [Appellant] with two (2) counts of
     Involuntary Deviate Sexual Intercourse 18 Pa.C.S.A. §3123(b),
     one (1) count each of Rape of a Child 18 Pa.C.S.A. §3121(c) and
     Indecent Assault 18 Pa.C.S.A. §3126(a)(7), and six (6) counts of
     Criminal Solicitation to Commit Involuntary Deviate Sexual
     Intercourse 18 Pa.C.S.A. §902(a). The hearing on these charges


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         was held on December 6, 2018. At the conclusion of the hearing
         we found [Appellant] involved in two (2) counts of Involuntary
         Deviate Sexual Intercourse, Rape of a Child, Indecent Assault, and
         two (2) counts of Criminal Solicitation to Commit Involuntary
         Deviate Sexual Intercourse and adjudicated him delinquent. The
         Court held a dispositional hearing on January 17, 2019, and
         ordered [Appellant] to be placed in a residential facility.
         [Appellant] filed a timely Post Dispositional Motion [challenging
         the weight of the evidence], which we denied. This appeal
         followed.

Juvenile Court Opinion, 4/5/19, at 1-3.

         Both the juvenile court and Appellant have complied with Pennsylvania

Rule of Appellate Procedure 1925.         On appeal, Appellant presents a single

issue:

   1. Whether the lower court abused its discretion in denying
      Appellant’s post-dispositional motion for a new trial where the
      inconsistencies presented at trial were so extensive and
      irreconcilable as to render the finding of involvement contrary to
      the weight of the evidence.

Appellant’s Brief at 8.

         We review Appellant’s weight of the evidence claim mindful of the

following:

         A weight of the evidence claim concedes that the evidence is
         sufficient to sustain the verdict, but seeks a new trial on the
         grounds that the evidence was so one-sided or so weighted in
         favor of acquittal that a guilty verdict shocks one’s sense of
         justice. Thus, we may reverse the juvenile court’s adjudication of
         delinquency only if it is so contrary to the evidence as to shock
         one’s sense of justice.

In re A.G.C., 142 A.3d 102, 109 (Pa. Super. 2016) (citations omitted).

         It is well-settled that the hearing judge sits as the finder of fact, and the

weight to be assigned the testimony of the witnesses is within the exclusive


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province of the fact finder. In re R.D., 44 A.3d 657, 664 (Pa. Super. 2012)

(citations omitted).   “This Court applies the same standard for reviewing

weight of the evidence claims in juvenile cases as those involving adults.” In

re J.G., 145 A.3d 1179, 1187 (Pa. Super. 2016) (citation omitted). “An

appellate court’s standard of review when presented with a weight of the

evidence claim is distinct from the standard of review applied by the trial

court[.]”   Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).              An

allegation that the verdict is against the weight of the evidence is addressed

to the discretion of the trial court; an appellate court reviews the exercise of

discretion, not the underlying question of whether the verdict is against the

weight of the evidence. In re J.G., 145 A.3d at 1187 (citations omitted).

      Appellant does not individually challenge the weight of the evidence as

to his adjudication of six separate offenses. Rather, he holistically claims that

the juvenile court’s finding that he “was involved was so contrary to the weight

of the evidence presented as to shock one’s sense of justice.” Appellant’s

Brief at 14.   Appellant argues “no testimony was credible, as each story

presented to [the juvenile court] in the Commonwealth’s case in chief

presented irreconcilable differences. Each incident testified to by [the victim]

was contradicted, whether by herself or the other so-called witnesses.” Id.

at 13. Appellant further states that “the case is rife with inconsistencies,”

where “not one person testified consistently on the incident . . .” Id. at 15-

16. Appellant’s argument is meritless.


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      The juvenile court recognized the contradictions in some of the

testimony. See generally, Juvenile Court Opinion, 4/5/19, at 5-7. However,

the court also referenced the sometimes “faulty memory of [the] 6 year old

[victim]” and the use of anatomical drawings at the hearing in opining that

“contradiction in her testimony . . . did not compromise [the victim’s]

credibility[.]” Id. at 6. The court explained:

      We heard and observed all the witnesses. Although only six years
      old, and understandably engaging in childish behavior at times,
      [the victim] testified about the essential facts in this case
      forthrightly, at times graphically, and always credibly. This Court
      has no doubt that what she described actually happened.
      Likewise, the testimony of A.O. and J.V., also juveniles, was
      straightforward and unshaken on cross-examination. Finally, the
      Children’s Alliance’s DVD of [the victim’s] explanation of what
      transpired between herself and [Appellant] was compelling,
      heartbreaking, and credible.          Therefore, the finding of
      [Appellant’s] involvement with the above crimes was not against
      the weight of the evidence but fully supported by the record.

Juvenile Court Opinion, 4/5/19, at 7.

      It is well settled that any conflicts or contradictions in testimony are for

the juvenile court to resolve. See, e.g., In re J.M., 89 A.3d 688, 692 (Pa.

Super. 2014).     Accordingly, the juvenile court did not err in rejecting

Appellant’s weight claim.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2019




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