J. S83003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF:                          :     IN THE SUPERIOR COURT OF
B.A.C., A MINOR                              :           PENNSYLVANIA
                                             :
APPEAL OF: B.A.C., A MINOR                   :         No. 1652 WDA 2015
                                             :


            Appeal from the Order Entered September 17, 2015,
               in the Court of Common Pleas of Erie County
             Criminal Division at No. CP-25-JV-0000049-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED DECEMBER 22, 2016

      B.A.C. appeals from the juvenile dispositional order entered in the

Court of Common Pleas of Erie County on September 17, 2015, adjudicating

him as a delinquent and in need of treatment, supervision, and rehabilitation

after the juvenile court adjudged him delinquent of rape, sexual assault,

aggravated indecent assault, indecent assault, and indecent exposure. 1 We

affirm.

      The   juvenile   court   set   forth   the   following,   gleaned   from   the

delinquency hearing:

                  The Commonwealth first called S.S. to testify.
            S.S. testified that she is currently seventeen years
            old and was born [in April 1998]. Appellant is her
            cousin. She identified Appellant on the record. S.S.

* Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3125(a)(1), 3126(a)(1), and 3127(a),
respectively.
J. S83003/16


              continued that, beginning December 26, 2008, she
              and her siblings moved into Appellant’s home. She
              stated that her aunt and uncle, M.C. and A.C., Sr.,
              had eleven people living in the house at the time, to
              include their children, Appellant, R.C., B.C., J.C. and
              S.C.; and S.S.’s siblings, Z.S., St.S. and C.S. There
              was a period of time wherein S.S. and Appellant did
              not live in the home after it was destroyed by fire.
              S.S. and Appellant moved back into the home in
              2013. As the house was being rebuilt, everyone had
              rooms in the first unfinished floor which S.S. referred
              to as the “basement.” S.S. slept in a basement
              room with her sisters, St.S. and C.S. Appellant
              shared a room with his brother R.C. and S.S.’s
              brother, Z.S.

                     S.S. testified to three separate events from
              2014. S.S. claimed that, one night, Appellant came
              into her bedroom and woke her up. He subsequently
              attempted to “force [her] to have sex with him.”[2]
              R.C., however, was awake and came into the room
              and “caught him.” A second event also happened
              earlier in the summer of 2014, when S.S. and
              Appellant were sitting on the couch.         Appellant
                                3
              “forced [S.S.’s][ ] hand down his pants” and on his
              penis. S.S. testified that she never told her aunt and
              uncle, M.C. and A.C., Sr., about these incidents
              because she felt they would not believe her. S.S.
              claimed that on a prior occasion, in the winter, when
              she was in fifth grade, Appellant and his brother B.C.
              “teamed up” against her and her friend Courtney to
              “dry hump” them. S.S. stated she told M.C. about
              this incident and M.C. instructed her not to say or do
              anything.

                    S.S. also testified to the events of June 21,
              2014. That summer, S.S. worked the Wattsburg Fair
              with Larry Wellman. S.S. testified that on one day in
              June 2014, Mr. Wellman brought her, Appellant and
              Appellant’s   brother    R.C.   to   the   Wattsburg

2
    Brackets within quotation marks in original.
3
    Brackets in original.


                                       -2-
J. S83003/16


              Fairgrounds to work on flyers. They arrived between
              nine and ten o’clock in the morning. S.S. and the
              others joined another lady, whose name S.S. could
              not recall,[Footnote 2] in the Wattsburg Fairgrounds
              office. The fairgrounds were not open, and the five
              of them were the only people there.

                     [Footnote 2]       The other lady was
                     identified later   in the testimony as
                     Rosella Fenno.

                     At one point, Larry left to take R.C. home so
              that he could join his girlfriend at the races. S.S.
              testified that they were the only people at the
              Fairgrounds      and   the   other    buildings   were
              abandoned. Shortly after that, S.S. left to go to the
              bathroom, which is located in the “Lowe’s building”
              fifty to sixty yards away from the office. The “Lowe’s
              building” consists of a large open space with a men’s
              and women’s bathroom on the far end.               The
              women’s bathroom consisted of [a] sink to the right
              hand side, followed by three regular bathroom stalls
              and then one handicapped stall. As S.S. was sitting
              in the first bathroom stall, she saw Appellant’s feet
              behind the stall doors.        She knew they were
              Appellant’s feet because of his shoes. After she
              finished, she washed and dried her hands. S.S.
              testified that Appellant did not say anything to her
              during this time, but stood in the doorway.
              Subsequently, Appellant refused to let her leave the
              bathroom. S.S. testified that he prevented her from
              leaving by “stopping [her][4] with his chest.” S.S.
              estimated that she is five feet four inches tall and
              weighs one hundred and twenty pounds, and that
              Appellant is taller and stronger than she is. The
              Court took judicial notice that Appellant is
              approximately six feet two inches tall.

                    S.S. told Appellant “Stop” and said “Let me
              out.” Instead, Appellant pushed S.S. back toward
              the garbage can. He then put his hands on her
              shoulder and pushed her into the handicapped stall.

4
    Brackets in original.


                                        -3-
J. S83003/16


              Appellant continued and pulled down S.S.’s pants
              and underwear together, and his pants and
              underwear together. Appellant then “took his leg
              and put it behind [S.S.] and took [her] up behind
              [her] legs and had his hands on [her] shoulders and
              laid [her] on the ground.”[5] S.S. testified that the
              bathroom contained [a] cement floor and it was cold.
              Appellant held S.S. on the floor by the wrist of her
              hands and lay on top of her so that she could not
              move.     S.S. was laid perpendicular to the toilet
              within the stall and she hit her head against the wall.
              S.S. testified that she told Appellant to get off, but
              did not scream because nobody was around.
              Appellant subsequently penetrated S.S.’s vagina with
              his penis. S.S. testified that it hurt and she was
              crying. S.S. further testified that it was the first time
              she had sex. S.S. also testified that Appellant had
              placed a yellow grocery bag on his penis and the bag
              was already there when he pulled his pants and
              underpants down.

                     S.S. estimated that Appellant continued for
              two minutes. Afterward, Appellant did not help S.S.
              up and just left her on the ground. S.S. then waited
              in the bathroom for Appellant to return to the office.
              S.S.    testified  that   she    began    crying   for
              approximately five minutes. She subsequently went
              back to the office and continued to help with the
              flyers. S.S. stated that she was not crying then and
              she did not tell anybody what happened.           She
              testified she was too scared to tell anybody. She sat
              at a table diagonally across from Appellant to
              continue working on the fliers. They remained at the
              office for between five and ten minutes before
              Mr. Wellman took them home.

                    The following day, S.S. told her friend’s
              mother, Jaime, what had happened. S.S. testified
              she did not tell anyone sooner than that because she
              was afraid and did not know what would happen.



5
    Brackets within quotation marks in original.


                                        -4-
J. S83003/16


                 On cross-examination, S.S. denied that she
          fabricated the allegations of rape because she was
          made [sic] at how her aunt, M.C., was treating her.
          Cross-examination focused on whether S.S. perhaps
          fabricated these allegations against Appellant
          because his mother, M.C., would not allow S.S. to go
          to the movies.      In fact, S.S. characterized her
          relationship with her aunt as “pretty decent.” S.S.
          further denied that she had dating [sic] Appellant’s
          half-brother A.C., Jr. Following S.S.’s testimony, the
          Court recessed.

                 On September 1, 2015, the Court reconvened.
          Before the presentation of testimony, the parties
          stipulated to the admission of Exhibit I. Exhibit I
          included the curriculum vitae of two experts,
          Micha Wilpula of the Serology Section of the Erie
          Regional Laboratory and Dr. Alex Glessner with the
          Pennsylvania State Police Forensic DNA Division.
          Importantly, Exhibit I also included the reports of
          both Ms. Wilpula and Dr. Glessner, which pertained
          to a serology and forensic DNA testing, respectively,
          of the plastic bag recovered from the girl’s restroom
          in the Lowe’s Building and marked as Exhibit E. The
          serology report of Ms. Wilpula concluded to a
          reasonable degree of scientific certainty a positive
          result of p30, which indicated the presence of semen
          from a male. Further, the forensic DNA report of
          Dr. Glessner returned to a reasonable degree of
          scientific certainty a partial DNA profile that matched
          the DNA sample of S.S. from the outside of the
          plastic bag.      However, Dr. Glessner could not
          indicate any finding in regard to the semen located in
          the plastic bag due to an insufficient quantity of
          Y chromosome DNA. Consequently, no comparison
          to the known reference of Appellant was attempted.
          The stipulation set forth in Exhibit I revealed the
          yellow grocery bag had S.S.’s DNA and seminal
          material on it, but it did not have enough
          Y chromosome to specifically identify Appellant as
          the source of the semen.

                The Commonwealth called as its next witness
          the affiant, Pennsylvania State Trooper Sean Pierce.


                                   -5-
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              Trooper Pierce testified that he has been stationed at
              Erie for twelve years and has been a criminal
              investigator for the past six years. He stated that
              the alleged incident between Appellant and S.S.
              occurred on June 21, 2014 and was reported to
              Pennsylvania State Police on either July 2, 2014 or
              July 3, 2014.

                     Subsequently, on July 11, 2014, he attended
              an interview between S.S. and Michelle Peterson of
              the Child Advocacy Center. The interview took place
              solely between S.S. and Ms. Peterson, and
              Trooper Pierce observed the interview through closed
              circuit television in a separate room. During the
              course of the interview, S.S. “identified the location
              of where the incident occurred and also made [a]
              statement in regards to a trash bag being possibly
              used as a [sic] improvised condom.”[6] Immediately
              following the interview, Trooper Pierce went to the
              Wattsburg Fairgrounds.         Trooper Pierce was
              introduced to Junior Hartner, the fairground
              president, who took him to the Lowe’s building.
              Trooper Pierce went into the women’s restroom and
              documented the scene with photographs.            After
              photographing the room, Trooper Pierce began to
              search the garbage can and was informed by
              Mr. Hartner that each stall had an individual garbage
              can for feminine products.            Trooper Pierce
              subsequently searched each of those and found a
              yellow plastic bag within the trash can of the
              handicapped stall.        Trooper Pierce identified
              Commonwealth’s Exhibit K as a torn piece of the
              yellow plastic bag which was “identified by [S.S.] as
              being used by [Appellant] [as an] improvised
              condom.”[7] Trooper Pierce described “what looked
              like [] some type of discharge”[8] inside the bag.



6
    Brackets within quotation marks in original.
7
    Brackets within quotation marks in original.
8
    Brackets within quotation marks in original.


                                       -6-
J. S83003/16


                     Trooper Pierce acknowledged that in between
              June 21, 2014 and July 22, 2014, a wedding had
              taken place inside the Lowe’s building on June 28,
              2014. Trooper Pierce did not know the number of
              people at the wedding, or whether S.S. was in
              attendance.     He also did not know whether the
              garbage [can] had been changed after the wedding,
              but believed it had not been based on his
              observation that the main trash can was “quite full.”
              However,      as   revealed    in   Commonwealth’s
              [Exhibits] J and K, the yellow shopping bag is the
              only item displayed on top of the garbage can in the
              handicapped stall, which would indicate that no other
              items were discarded in this garbage receptacle
              between the incident and the search.

                    Trooper Pierce further testified that he
              interviewed John “Larry” Wellman approximately ten
              days later and that he interviewed Rosella Fenno
              approximately twenty days later, on August 4, 2014.

                     The Commonwealth subsequently called [C.T.],
              a former neighbor of Appellant and S.S., and who is
              eighteen years old. [C.T.] testified that she lived at
              [] Hill Road from approximately 2009 to 2012. She
              positively identified Appellant on the record as her
              former neighbor. [C.T.] testified that, during the
              time she lived nearby, she would often go to
              Appellant’s home to play with S.S. [C.T.] referred to
              a specific incident in the winter of 2009, shortly after
              both she moved into the neighborhood and after S.S.
              had moved in Appellant’s home. She, S.S. and
              Appellant were all eleven years old at the time.
              [C.T.] testified that she and S.S. were outside
              playing with Appellant when Appellant and his
              brother, B.C., began “chasing [her and S.S.] in the
              snow and tried to dry hump [them].”[9]            [C.T.]
              further explained that Appellant and [B.C.] were
              “chasing [her and S.S.] and they were trying to
              tackle [her and S.S.] to the ground.”[10] She stated

9
    Brackets within quotation marks in original.
10
     Brackets within quotation marks in original.


                                       -7-
J. S83003/16


          specifically that Appellant was going after S.S.
          [C.T.] described that S.S. was on her back, and
          Appellant was on top of her thrusting as S.S. tried to
          push him off. Everyone was wearing a snowsuit and
          a jacket or coat.

                 [C.T.] stated that S.S. did not cry at all during
          this incident. [C.T.] acknowledged that she did not
          tell anyone about the incident after it happened.
          She explained that she was scared and did not think
          anyone would believe her.           Following [C.T.’s]
          testimony, the Commonwealth rested.

                Subsequently, after the Court conducted a
          colloquy with Appellant concerning his constitutional
          rights, Appellant called as his first witness
          John “Larry” Wellman. Mr. Wellman lives [] across
          the street from Appellant. He has lived on [that
          road] since 1956. He stated he has known Appellant
          and his family for six years, since they moved into
          the [] residence. He denied knowing Appellant’s
          family from the area prior to them moving across the
          street. He has served on the Wattsburg Fairgrounds
          Board of Directors for seven years.

                Mr. Wellman testified that the children typically
          help him at the fairground on different occasions.
          Specifically, Mr. Wellman would ask Appellant, his
          brother R.C., and S.S. to help him. He testified that
          he had asked them to help out twice in June of 2014
          and perhaps once in May. He testified that the boys
          (Appellant and R.C.) had helped him in 2012 and
          2013, but S.S.had not.

                Mr. Wellman testified that books were printed
          for the Wattsburg Fair that had errors, so
          Mr. Wellman asked Appellant, S.S., and Appellant’s
          brother R.C. to help correct those errors on the
          second occasion in June wherein he brought them to
          the fairground to help. Mr. Wellman estimated that
          there were “thousands” of books to correct.
          Mr. Wellman brought Appellant, S.S. and R.C. to the
          fairgrounds at about 11:00 a.m. Mr. Wellman left
          S.S. with Rosella Fenno in the office to correct the


                                   -8-
J. S83003/16


              books while he, R.C. and Appellant “were doing other
              things in the fairgrounds.” Mr. Wellman fed them
              lunch at around 1:00 p.m., and then they all
              remained in the office correcting the books until
              approximately 3:00 p.m. At that time, Mr. Wellman
              left to bring R.C. home so that he could go to the
              races with his girlfriend. Mr. Wellman explained it
              takes about twenty minutes to drive to his house
              from the fairgrounds and back.

                     When he returned, Rosella was the only one in
              the office. Approximately, ten to fifteen minutes
              later, Appellant and S.S. returned to the office.
              Mr. Wellman stated that “there was no emotion on
              either one of them that something had happened”
              and that they “joked around like [] before in the
              office.”[11] He did not notice any indication that S.S.
              had been crying. A couple hours later, at “roughly
              5:00 p.m.,” Mr. Wellman returned Appellant and S.S.
              home where Appellant’s parents were outside with
              some of the other children. Mr. Wellman testified
              that Appellant and S.S. began kicking a ball around
              the yard with other children and he then left.

                    Mr. Wellman testified that neither S.S. nor
              Appellant worked at the fairgrounds again after that
              day. Mr. Wellman never stated in his testimony that
              Appellant’s brother, R.C., was living with him at the
              time. This was later revealed in R.C.’s testimony.
              Also, Mr. Wellman stated he only knew Appellant’s
              family in a social context over the last six years
              through working together at the Wattsburg
              Fairgrounds.    However, it was also revealed in
              testimony that Mr. Wellman knew Appellant’s family
              quite extensively for many years and much longer
              than the six years testified to by Mr. Wellman.

                    Appellant next called Rosella Fenno to testify.
              Ms. Fenno testified that she knew Appellant and a
              “few” of his family members, but she did not “know
              them all.” She knew Appellant’s parents. She knew
              S.S. from working with her one day. She did not

11
     Brackets within quotation marks in original.


                                       -9-
J. S83003/16


              know S.S. and referred to her as “the girl, whatever
              her name is.”

                     She testified that sometime in June, before the
              Fair, Mr. Wellman, Appellant, R.C. and “the girl”
              were at the office to put corrections in the fair books.
              Ms. Fenno stated that they arrived at 8:00 or
              9:00 a.m., at the latest before 10:00 a.m. She
              explained that Mr. Wellman prepared lunch at the
              Lowe’s building, and they left the office to go to the
              Lowe’s building to eat around 12:45 to 1:00 p.m.
              They subsequently returned to the office and began
              working on the books again. Mr. Wellman left at
              about quarter to three to three o’clock to take R.C.
              home.      Ms. Fenno was not sure how long
              Mr. Wellman was gone because “he was doing some
              things on the grounds before he came back in the
              office.”

                    At one point, Appellant and S.S. left to go to
              the restroom. Ms. Fenno stated that they left to go
              to the restroom together and that they came back
              together. Ms. Fenno could not answer how long they
              were gone but stated “It wasn’t extremely long.”
              She testified that the demeanor of Appellant and
              S.S. was the same as before they left to use the
              restroom. She did not see any indication that S.S.
              had been crying. She said they “continued with the
              job just like [they] did before.”[12] She explained
              that they sat in the same seats they had before
              lunch, with S.S. sitting across from her and Appellant
              standing at the end of the table. They continued to
              work in the office together, and Ms. Fenno was home
              by 4:00 p.m. She could not say whether she or
              Mr. Wellman and the children left first.

                    On cross-examination, Ms. Fenno explained
              that she had known Appellant and his brother for
              three or four years. Upon further examination by
              the Court, Ms. Fenno further explained that Appellant
              and his brothers had worked at the Wattsburg
              Fairgrounds for four or five years.       She knew

12
     Brackets within quotation marks in original.


                                       - 10 -
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              Appellant’s parents because his father, A.C., Sr. was
              Director of the Fair at one time. She could not recall
              which year that was, but acknowledged that
              Mr. Wellman would have known A.C., Sr. at that
              point. Ms. Fenno actually had been a Director for the
              Fair for nine years until the fall of 2014. Ms. Fenno
              further testified that she, Mr. Wellman and A.C., Sr.
              all served on the Wattsburg Fairgrounds Board of
              Directors for a number of years.

                     Appellant next called his brother, R.C., to
              testify. R.C. testified that he lives with Mr. Wellman
              and works at his concession stand.            R.C. has
              volunteered to help with the fair for the past six
              years. R.C. did not remember the exact day that he
              went to the fairgrounds with Mr. Wellman, Appellant
              and S.S. to help fix the books. He did remember
              that on that day, they arrived at the fairgrounds
              around 11:00 a.m. R.C. helped with “a couple things
              around the fairgrounds” before lunch, which occurred
              around 1:00 p.m., and then they helped with the
              books after lunch. Mr. Wellman subsequently took
              him home around 3:00 p.m. so he could go to the
              races with his girlfriend. At that time, he was living
              with his parents. He later explained that he moved
              into Mr. Wellman’s house “shortly after this all
              started.”     The fact that R.C., the brother of
              [Appellant], lived with Mr. Wellman was never
              disclosed by Mr. Wellman in his testimony. Clearly,
              R.C.’s testimony indicated the close relationship
              Appellant’s family had with Mr. Wellman.

                    R.C. testified that he returned from the races
              around 11:00 p.m. He did not remember whether
              Appellant and S.S. were still awake at that time.
              However, in the days following the assault, R.C.
              believed “everything was still as normal,” and he
              explained, “I didn’t see any difference in [Appellant
              and S.S.] at all.”[13]     R.C. denied ever seeing
              Appellant go into S.S.’s bedroom or stopping
              Appellant from sexually assaulting her as S.S.
              previously testified.

13
     Brackets within quotation marks in original.


                                      - 11 -
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                    On cross-examination, R.C. acknowledged that
              he would like to have all of his siblings living
              together again. However, R.C. stated he would not
              want S.S. living with them, “not after what she’s
              tried to do to [them].”[14] R.C. further explained
              that he had known Mr. Wellman longer than
              six years and that his older brother, S.C., used to
              work for Mr. Wellman before he did. R.C. also
              acknowledged that shortly after the incident, S.S.
              began staying at a friend’s house before being
              removed from his home. R.C. estimated it was two
              weeks before S.S. was removed from the home.

                     Appellant next called A.C., Jr. to testify.
              However, during the course of his testimony,
              A.C., Jr.    made      an      apparent     potentially
              self-incriminating statement. Out of an abundance
              of caution and in A.C., Jr.’s interests and to protect
              his right against self-incrimination, the Court
              informed him of his constitutional rights and
              recessed to allow him to seek the advice of counsel
              before     proceeding     [with]     the   testimony.
              Subsequently, when the Court reconvened on
              September 3, 2015, Appellant withdrew A.C., Jr. as a
              witness and his testimony was struck from the
              record.

                    Appellant next decided to testify, and the Court
              found that Appellant knowingly and voluntarily
              waived his constitutional right to remain silent and
              not testify. Appellant’s parents are A.C., Sr. and
              M.C. and he has five brothers: S.C., R.C., B.C.,
              A.C. Jr., and J.C. From 2009 to 2014, Appellant also
              lived with S.S., her sister C.S., and her brother, Z.S.
              Appellant testified that S.S.’s brother, Z.S., was
              removed from the home in June of 2014 upon the
              request of Appellant’s parents, A.C., Sr. and M.C.

                   Appellant subsequently testified concerning the
              events at the Wattsburg Fairgrounds in June 2014.
              Mr. Wellman picked Appellant, S.S. and R.C. up and

14
     Brackets within quotation marks in original.


                                      - 12 -
J. S83003/16


          they arrived at the fairgrounds at approximately
          11:00 a.m. They dropped S.S. off at the office and
          then moved barrels, chairs and tables.            They
          subsequently returned to the office to work on the
          books. They had lunch around 12:45 p.m., and then
          returned to the office to work on the books again.
          Mr. Wellman then left to drop R.C. off around
          3:00 p.m. S.S. asked Ms. Fenno for permission to
          use the restroom, which was granted. Ms. Fenno
          then told Appellant “if you need to do it, do it now.”
          So, a couple seconds after S.S. left, Appellant left to
          go to the restroom too, and, according to his
          estimation, S.S. was halfway to the Lowe’s building
          when he left the office. He went to the men’s room
          while S.S. was in the women’s room. Appellant
          stated that he heard Mr. Wellman’s truck and
          “finished up.” He knew it was Mr. Wellman’s truck
          because he had known Mr. Wellman for most of his
          life. When he walked out of the restroom, S.S. was
          by the tables where they ate lunch and they returned
          to the office together.

                Appellant testified that when they returned to
          the office, they sat next to each other at the same
          side of the table. It was approximately 3:30 p.m.
          and they continued to work on the books until
          5:00 p.m., when they left. Mr. Wellman took them
          home. Appellant stated that his brothers -- S.C.,
          J.C. and B.C. -- and two neighbors were playing
          soccer in the yard, and that he and S.S. joined them.
          Appellant testified that the day following the
          incident, S.S. went to a friend’s house.           He
          characterized her demeanor as “the same as any
          other day.”

                Appellant denied ever going into the women’s
          restroom and denied sexually assaulting S.S. He
          denied having a yellow plastic bag and placing it on
          his penis as a condom to have sex with S.S. He
          stated there was no sexual intercourse between
          them, consensual or otherwise.     He denied ever
          seeing S.S. crying or seeing anything that would
          indicate she had been crying after going to the
          restroom that day.


                                  - 13 -
J. S83003/16



                Appellant further denied ever going into S.S.’s
          bedroom without authorization.      He denied ever
          going into S.S.’s room to sexually assault her. He
          denied ever jumping on her and trying to “dry hump”
          her while outside playing in the snow when he was
          twelve.

                Appellant further testified that in 2013, when
          his brother A.C., Jr. was not living with the family,
          A.C., Jr. and S.S. dated. He stated that his parents,
          A.C., Sr. and M.C., talked to S.S. about dating
          A.C., Jr. and grounded her.

                Upon examination by the Court, Appellant
          denied any and all sexual contact with S.S. through
          the course of his life. Appellant further testified that
          S.S. had worked at the Wattsburg Fairground three
          times. He stated that he, R.C., Mr. Wellman, and
          Ms. Fenno had all worked with S.S. at the
          fairgrounds previously.

                 Appellant also testified that there was another
          person walking his dog at the fairgrounds on the day
          of the incident. Surprisingly, this was the first time
          the identity of any other person (other than those
          witnesses previously mentioned) was stated to be at
          the Fairgrounds. Appellant stated he did not know
          his name but he was walking on the other side of the
          track of the fairgrounds. He saw this other person
          when he was going to the restroom. He described
          the other person as tall, with a beard and walking a
          dog. He believed the dog to have been a German
          Shepherd. This person was not near the Lowe’s
          building and was on the opposite end of the
          fairgrounds driveway, walking in the opposite
          direction. He said he did not know this other person
          and did not go up to him or say anything to him.
          Appellant stated the man did not enter the bathroom
          and no one else every [sic] came into the Lowe’s
          building at the time. He claimed he never saw the
          other man again. Appellant did not tell Mr. Wellman
          about this other person, but did tell his father.



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Juvenile court opinion, 12/17/15 at 4-17 (citations to delinquency hearing

and exhibits omitted).

     The record further reflects that after the Commonwealth filed

allegations of delinquency against appellant, a delinquency hearing was

scheduled before the Honorable Robert A. Sambroak, Jr., for July 20, 2015.

On July 13, 2015, appellant filed a motion for discovery, in which he sought

reports from the Erie County Office of Children and Youth (“OCY”) regarding

inculpatory and/or exculpatory statements made by the victim to social

workers and/or therapists. On July 14, 2015, Judge Sambroak denied the

motion.    Thereafter, on July 17, 2015, appellant filed a motion for

Judge Sambroak’s recusal because, among other things, the judge was

assigned to the dependency cases of appellant and three of his brothers, as

well as the dependency cases of the victim and two of her siblings.

Judge Sambroak granted the recusal motion on July 20, 2015. The case was

then reassigned to the Honorable John J. Trucilla, and the delinquency

hearing was rescheduled for August 13, 2015.

     The record also reflects that following the juvenile court’s entry of its

dispositional order, appellant filed a timely notice of appeal.    The juvenile

court then ordered appellant to file a statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).        Appellant complied.    Thereafter,

Judge Sambroak filed a supplemental Rule 1925(a) opinion regarding

appellant’s claim that Judge Sambroak erred in denying appellant’s motion



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J. S83003/16


for discovery.   The juvenile court incorporated that opinion into its

Rule 1925(a) opinion.

     Appellant raises the following issues for our review:

           A.    Whether the Honorable Robert A. Sambroak
                 erred when it denied Appellant’s Motion for
                 Discovery and thereby ruled that Appellant was
                 not entitled to a copy of and/or a review of
                 reports and/or statements made to the Office
                 of Children & Youth (OCY) by the victim, as
                 Appellant needed those documents to prepare
                 a proper cross-examination of the victim
                 during the trial, and that said ruling violated
                 Appellant’s rights under the Constitutions of
                 the United States and the Commonwealth of
                 Pennsylvania[?]

           B.    Whether the verdict goes against the
                 sufficiency of the evidence because (a) the
                 victim’s immediate post-reaction to the alleged
                 sexual assault was not an honest and truthful
                 response to the alleged actions and/or the
                 victim’s testimony supports the proffered
                 testimony of the Appellant’s witnesses in that
                 the victim did not act any differently from her
                 normal actions; and (b) the victim’s statement
                 and/or testimony included a statement that the
                 Appellant used a plastic bag as a condom
                 because he did not have a condom on his
                 person denotes a familiarity and/or knowledge
                 of Appellant’s sexual tendencies when such
                 familiarity and/or knowledge goes against the
                 facts of the allegations[?]

           C.    Whether the verdict goes against the weight of
                 the evidence because the Commonwealth’s
                 primary witnesses, the victim and her friend,
                 contradicted    themselves    [on]    multiple
                 occasions on factual matters and that those
                 factual matters were a substantial deviation
                 from    what   the   Commonwealth     alleged
                 happened, and therefore the Commonwealth


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J. S83003/16


                  cannot present any credible witnesses with
                  actual knowledge and/or information and/or
                  the Commonwealth cannot meet the beyond a
                  reasonable doubt burden of proof[?]

            D.    Whether the [juvenile court] erred at time of
                  trial by not allowing any testimony from the
                  Appellant and/or other witnesses that would
                  have allowed the [juvenile] court to hear
                  Res Gestae     evidence    germane   to   the
                  Appellant’s   background    and/or  character
                  and/or germane to the relationship between
                  the Appellant and the victim[?]

            E.    Whether the [juvenile court] erred at time of
                  trial by not allowing the Appellant to present a
                  closing statement prior [to] the [juvenile]
                  court’s ruling as the trial involved a
                  complicated and/or sensitive fact pattern
                  and/or approximately seven (7) witnesses over
                  a three (3) day period[?]

            F.    Whether the [juvenile court] erred at time of
                  trial when the [juvenile] court ruled that all of
                  Appellant’s witnesses, including Appellant,
                  were not credible in toto despite the strong
                  similarities between the testimonies of the
                  victim and Appellant’s witnesses and/or the
                  lack of any motivation and/or other reason to
                  provide untruthful testimony before the
                  [juvenile] court[?]

Appellant’s brief at 3-4.

      “The Juvenile Act grants juvenile courts broad discretion when

determining an appropriate disposition. . . .     We will disturb a juvenile

court's disposition only upon a showing of a manifest abuse of discretion.”

Interest of C.A.G., 89 A.3d 704, 709 (Pa.Super. 2014) (citations omitted).

Our supreme court has held that an adjudication of delinquency requires



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J. S83003/16


both findings “(1) that the juvenile has committed a delinquent act; and

(2) that the juvenile is in need of treatment, supervision, or rehabilitation.”

Commonwealth v. M.W., 39 A.3d 958, 959 (Pa. 2012),

       In his first issue, appellant complains that Judge Sambroak erred in

denying appellant’s motion for discovery of reports and/or statements that

the victim made to OCY because appellant needed those documents to

prepare a proper cross-examination of the victim. (Appellant’s brief at 8.)

       In denying appellant’s discovery motion, Judge Sambroak first

determined that the records appellant sought constituted confidential reports

pursuant to 23 Pa.C.S.A. § 6340.              Appellant does not dispute that

determination, but claims that he had “anticipated that [Judge Sambroak]

would have conducted an en [sic] camera, pursuant [to] [Section] 6340,

which proves [sic] in part that specific, confidential reports regarding alleged

incidents of child abuse or sexual abuse ‘shall only be made available to,

among others, “a court of competent jurisdiction.”’”      (Appellant’s brief at

10.)   Judge Sambroak, however, did not conduct an in camera review.

Rather, Judge Sambroak denied appellant’s request as untimely and deemed

it “as a last minute attempt to delay the denial[15] hearing.” (Supplemental

Rule 1925(a) opinion, 11/23/15 at 2-3.)        Judge Sambroak also noted that

because appellant knew that the documents existed from the inception of



15
  Erie County trial courts oftentimes refer to a delinquency hearing as a
denial hearing.


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J. S83003/16


the dependency case, appellant could have sought discovery at an earlier

date. (Id. at 3.)

      Regarding the relevant timeline, the record reflects that appellant was

charged with seven allegations of delinquency on January 27, 2015, and his

adjudicatory hearing was scheduled for July 20, 2015. In his brief to this

court, appellant’s counsel states that he met appellant for the first time at

appellant’s status conference on April 10, 2015. (Appellant’s brief at 8.) On

July 13, 2015, which was three months after the status conference and one

week prior to the scheduled delinquency hearing, appellant filed his motion

for discovery.   Judge Sambroak denied the discovery motion, without an

opinion, by order docketed July 14, 2015. On July 17, 2015, appellant then

moved for Judge Sambroak’s recusal, and Judge Sambroak recused himself

on July 20, 2015.       Appellant’s adjudication was then transferred to

Judge Trucilla and appellant’s delinquency hearing was rescheduled for

August 13, 2015.      We note that despite Judge Sambroak’s grant of

appellant’s motion for recusal, appellant did not file any discovery motions

with Judge Trucilla, who was reassigned to appellant’s adjudication.

      In his brief, appellant offers no explanation as to why he filed his

discovery motion a week before the scheduled delinquency hearing that was

to take place before Judge Sambroak.           Rather, appellant relies on

Pa.R.J.C.P. 347(a) to justify the timing of his filing of that motion.

Rule 347(a) provides that an “omnibus motion shall be made as soon as



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J. S83003/16


practical but can be made at any time prior to the calling of the first witness

at the adjudicatory hearing.” Appellant, however, filed a discovery motion.

Pa.R.J.C.P. 340(a) governs pre-adjudicatory discovery and provides that a

discovery motion “shall be made as soon as possible prior to the

adjudicatory hearing.”    Here, Judge Sambroak denied the motion after

finding it untimely, as well as a last-minute attempt to delay the hearing.

Judge Sambroak further noted that appellant could have sought discovery at

an earlier date. Appellant fails to demonstrate otherwise. As such, we find

no abuse of discretion.

      In his second complaint, appellant attempts to raise a sufficiency of

the evidence claim by challenging the testimony regarding the victim’s

reaction after the assault, as well as her knowledge of the purpose of a

condom.     (Appellant’s brief at 21-25.)     It is well settled that when

challenging the sufficiency of the evidence on appeal, that in order to

preserve that issue for appeal, an appellant’s Rule 1925(b) statement must

specify the element or elements upon which the evidence was insufficient.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010) (citation and internal quotation marks

omitted); see also In re J.G., 145 A.3d 1179, 1189 (Pa.Super. 2016).

      Here, in his Rule 1925(b) statement, appellant frames his sufficiency

challenge in the identical manner that he frames his sufficiency claim in his

appellate brief.   (Concise statement of matters complained of on appeal,



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J. S83003/16


11/12/15 at 2, ¶ 2.)          Appellant’s sufficiency claim as set forth in his

Rule 1925(b) statement fails to identify which element or elements of any of

the crimes of which he was adjudicated delinquent were insufficient.

Additionally, although appellant attempts to challenge the sufficiency of the

evidence, he does nothing more than raise a weight of the evidence

challenge because his argument attacks the victim’s reliability.                 Therefore,

appellant’s complaint goes to the weight of the evidence, not its sufficiency.

See Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003)

(a review of the sufficiency of the evidence does not include a credibility

assessment;      such     a   claim   goes     to    the   weight     of   the   evidence);

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (the

fact-finder makes credibility determinations, and challenges to those

determinations go to the weight of the evidence, not the sufficiency of the

evidence).

         Appellant also challenges the weight of the evidence in his third issue,

claiming that the “Commonwealth’s primary witnesses, the victim and her

friend, contradicted themselves” and that the Commonwealth was unable to

present any credible witnesses. (Appellant’s brief at 3, 21-26.) In his sixth

issue,     appellant    challenges    all     of     the   juvenile    court’s   credibility

determinations.        (Id. at 26-32.)      We will, therefore, address the weight

challenges that appellant presents in his second, third, and sixth claims

together.



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           This [c]ourt applies the same standard for reviewing
           weight of the evidence claims in juvenile cases as
           those involving adults. In re R.N., 951 A.2d 363,
           370 (Pa.Super.2008), called into question on other
           grounds, In re J.B., 630 Pa. 124, 106 A.3d 76
           (2014). An allegation that the verdict is against the
           weight of the evidence is addressed to the discretion
           of the trial court. Commonwealth v. Ramtahal,
           613 Pa. 316, 33 A.3d 602 (2011). “An appellate
           court, therefore, reviews the exercise of discretion,
           not the underlying question whether the verdict is
           against the weight of the evidence.” Id., 613 Pa. at
           327-28, 33 A.3d at 609. Moreover, a court's denial
           of a motion for a new trial based upon a weight of
           the evidence claim is the least assailable of its
           rulings. Commonwealth v. Rivera, 603 Pa. 340,
           363, 983 A.2d 1211, 1225 (2009).

           While the comment to Pa.R.Crim.P. 607(A) specifies
           that weight of the evidence claims in criminal
           proceedings are waived unless they are raised with
           the trial court in a motion for a new trial, “the
           Pennsylvania Rules of Juvenile Procedure have no
           counterpart requiring the        same     manner    of
           preservation.” In re J.B., 630 Pa. 124, 149, 106
           A.3d 76, 91 (2014). Indeed, “the current Rules of
           Juvenile Court Procedure—which ‘govern delinquency
           proceedings in all courts'—are utterly silent as to
           how a weight of the evidence claim must be
           presented to the juvenile court so that it may rule on
           the claim in the first instance, which is . . . a
           necessary prerequisite for appellate review.” Id.,
           630 Pa. at 160, 106 A.3d at 98 (footnote omitted).
           Pa.R.J.C.P. 620(A)(2) governs the filing of what it
           expressly designates as an “optional post-
           dispositional motion.”    See Pa.R.J.C.P. 620(A)(2)
           (“Issues raised before or during the adjudicatory
           hearing shall be deemed preserved for appeal
           whether or not the party elects to file a post-
           dispositional motion on those issues”).

In re J.G., 145 A.3d at 1187.




                                   - 22 -
J. S83003/16


      Here, appellant did not file an optional post-dispositional motion

pursuant to Pa.R.J.C.P. 620 alleging that the verdict was against the weight

of the evidence, and he failed to raise such a challenge prior to the juvenile

court’s entry of its dispositional order. Appellant presented his weight of the

evidence claims for the first time in his Pa.R.A.P. 1925(b) statement. The

juvenile court, however, considered the merits of appellant’s weight

challenges in its Pa.R.A.P. 1925(a) opinion.         (Juvenile court opinion,

12/17/15 at 5-6.) We will, therefore, address appellant’s weight claims on

the merits.

      Appellant’s challenges to the weight of the evidence do nothing more

than invite this court to assess witness credibility and reweigh the evidence.

Appellant maintains that the Commonwealth witnesses were unreliable and

that appellant and his witnesses were reliable. Appellant dedicates 12 pages

of his brief reiterating testimony and attempting to point out inconsistencies

in the testimony of the Commonwealth witnesses and consistencies in the

testimony of appellant and his witnesses. (Appellant’s brief at 21-32.) The

juvenile court, however, as fact-finder, had the duty to determine the

credibility of the testimony and evidence presented at the adjudication. See

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).

      Here, the juvenile court concluded, as it was free to do, that “the

Commonwealth’s witnesses, particularly [the victim,] [were] fully credible”

and that the collective testimony of appellant’s witnesses “had an almost



                                    - 23 -
J. S83003/16


rehearsed ring to it” in that they “testified in the same minimizing and

protective way for [a]ppellant.” (Juvenile court opinion, 12/17/15 at 30-31.)

Our review of the record supports the conclusion that the evidence resulting

in appellant’s adjudications of delinquency was not so tenuous, vague, and

uncertain so as to shock the conscience of the court. See Talbert, 129 A.3d

at 546 (restating the rule of law that “[i]n order for a defendant to prevail on

a challenge to the weight of the evidence, ‘the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.”).

Therefore,     the   juvenile   court   properly   exercised   its   discretion,   and

appellant’s challenges to the weight of the evidence necessarily fail.

         Appellant next complains that the “[juvenile] court could have or

should have allowed Res Gestae evidence during the denial hearing” “with

regards to cross[-]examination of the [v]ictim.”         (Appellant’s brief at 32.)

The crux of appellant’s six-sentence argument on this issue is that he was

unable to effectively cross-examine the victim because Judge Sambroak

denied his discovery motion.        Indeed, appellant maintains that “[a]s this

issue closely relates to [a]ppellant’s issue regarding the Motion for

Discovery, [a]ppellant hereby incorporates that argument as if restated in

full.”    (Id. at 33.)   We addressed appellant’s meritless claim concerning

Judge Sambroak’s denial of appellant’s discovery motion in issue one, and

we will not reiterate it here.




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      Appellant finally complains that “the [juvenile] court could have or

should have allowed [a]ppellant to present a closing statement.” (Id.) The

record reflects that appellant did not request the opportunity to make a

closing statement before or during the adjudicatory hearing.16     The record

further reflects that appellant did not file a post-dispositional motion.17

Therefore, because appellant raises this issue for the first time on appeal, it

is deemed waived. See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

      Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2016




16
   The Rules of Juvenile Court Procedure do not provide the parties with the
right to make a closing statement in an adjudicatory proceeding. See
Pa.R.J.C.P. 406(A) (requiring the court to “conduct the adjudicatory hearing
without a jury, in an informal but orderly manner”).
17
    Pa.R.J.C.P. 620(A)(1) affords the parties the right to make a
post-dispositional motion. Pa.R.J.C.P. 620(A)(2) provides that “[i]ssues
raised before or during the adjudicatory hearing shall be deemed preserved
for appeal whether or not the party elects to file a post-dispositional motion
on those issues.”


                                      - 25 -
