J-S10038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: K.M., A MINOR                       :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
    APPEAL OF: K.M., A MINOR                   :
                                               :
                                               :
                                               :
                                               :
                                               :    No. 3196 EDA 2016

            Appeal from the Dispositional Order September 2, 2016
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                       No(s): CP-51-JV-0001172-2016


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                                 FILED MARCH 16, 2018

        Appellant K.M., a minor, appeals from the dispositional order entered

following an adjudication of delinquency for simple assault.1 Appellant asserts

that the evidence was insufficient to sustain the adjudication of delinquency

for simple assault because the Commonwealth presented no substantive

evidence of assaultive behavior. The Commonwealth agrees that “it is clear

that the trial judge did not permit the Commonwealth to enter the victim’s

prior    record[ed]    statement     [regarding     the   assaultive   behavior]   into

evidence[.] . . . Accordingly, the Commonwealth does not oppose vacating

K.M.’s adjudication for simple assault.”           Commonwealth’s Brief at 4.      We

vacate the adjudication of delinquency for simple assault and discharge

Appellant.
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1   18 Pa.C.S. § 2701.
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       Appellant and his girlfriend, N.C., were arguing by text message on the

day in question. N.C. was at a friend’s house, and Appellant arrived there,

wishing to speak with her. N.C. was not interested in doing so. Appellant

banged on the door. When N.C. later left the residence, Appellant approached

her and attempted to grab her by the arms. N.C.’s friend’s mother called the

police, and N.C. told police that Appellant had punched her and left a bruise

on her arm. Appellant was charged with committing acts constituting simple

assault and recklessly endangering another person.

       An adjudicatory hearing was held on August 31, 2016, during which N.C.

testified that she had told the police that Appellant had punched her right arm

and left a bruise. N.C. also maintained that Appellant did not actually hit her

and that any injuries the police may have seen on the day in question pre-

dated her encounter with Appellant. On September 2, 2016, the juvenile court

granted    Appellant’s     motion    for   judgment   of   acquittal   for   recklessly

endangering another person, adjudicated Appellant delinquent on the charge

of simple assault, and entered a dispositional order for supervised probation.

       Appellant filed a timely notice of appeal and court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).2               Appellant

presents the following issue for our review:


____________________________________________


2The juvenile court did not issue an opinion pursuant to Pa.R.A.P. 1925(a)
because the presiding judge was no longer sitting. Given that the issues are
apparent from the face of the record, we need not remand for the filing of an



                                           -2-
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       Was not the evidence insufficient as a matter of law to sustain an
       adjudication of delinquency for simple assault where the
       Commonwealth presented no substantive evidence of assaultive
       behavior?

Appellant’s Brief at 3.

       In determining the sufficiency of the evidence, the test is

       whether, viewing all evidence admitted at trial, together with all
       reasonable inferences therefrom, in a light most favorable to the
       Commonwealth as verdict winner, the trier of fact could have
       found that the [juvenile’s] guilt was established beyond a
       reasonable doubt.

          In order to sustain its burden of proof for simple assault, the
       Commonwealth must show that the [juvenile] “attempt[ed] to
       cause or intentionally, knowingly or recklessly cause[d] bodily
       injury to another.” 18 Pa.C.S. § 2701(a)(1)

In re M.H., 758 A.2d 1249, 1250-51 (Pa. Super. 2000) (some citations

omitted). Instantly, the Commonwealth did not introduce any evidence that

Appellant caused bodily injury to N.C., but merely elicited from N.C. the fact

that she had made a statement to police that Appellant had punched her. See

N.T., 8/31/16, at 25-26 (“I said that he did hit me and he did punch me. Yes,

I did say that.” (emphasis added)). However, as Appellant points out, the

actual statement averring that he had punched N.C. was not admitted into

evidence.

____________________________________________


opinion since we are not precluded from meaningful review.             See
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (noting that
the purpose of Rule 1925(a) is to provide our Court with a statement of
reasons for the order entered in the lower court “to permit effective and
meaningful review of the lower court[’s] decisions. However, the lack of a
Rule 1925(a) opinion is not always fatal to our review, because we can look
to the record to ascertain the reasons for the order.”)


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      Because the alleged prior inconsistent statement upon which the

delinquency disposition rests was not admitted into evidence, it is not part of

the record available for a review of the sufficiency of the evidence.     See

Commonwealth v. D'Alonzo, 566 A.2d 1211, 1213 (Pa. Super. 1989)

(noting that “[i]n passing on the sufficiency of the evidence, we decline to

consider evidence which was not admitted into evidence and was therefore

not before the trial court.”).

      Accordingly, we vacate the adjudication of delinquency for simple

assault and discharge Appellant.

      Dispositional order reversed.        Adjudication vacated.     Appellant

discharged.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/18




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