J-A03039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.R., A MINOR            :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                                             :
                                             :
APPEAL OF: J.R.                              :          No. 3300 EDA 2014

              Appeal from the Dispositional Order October 22, 2014
                 In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-JV-0000799-2014


BEFORE: GANTMAN, P.J., MUNDY J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED March 21, 2016

        Appellant, J.R., appeals from the dispositional order entered in the

Lehigh County Court of Common Pleas, following his adjudication of

delinquency for stalking and indecent assault.1 We affirm.

        The juvenile court fully and correctly set forth the relevant facts of this

case as follows:

           In September 2014, while in physical education class at
           the Roberto Clemente Charter School, located in the City
           of Allentown, Lehigh County, Pennsylvania, S.C., a thirteen
           year old female, felt the [j]uvenile, [Appellant], use two
           hands to grab her buttocks. She had not given him
           permission to do so.

           On a separate day following the incident in gym class,
           while walking in the hallway at Robert Clemente, S.C.
           again felt [Appellant] grab her buttocks using one hand.
           She did not give [Appellant] permission to do so. The next
           day, S.C. wrote [Appellant] a classroom note, asking him
           why he had grabbed her buttocks. [Appellant] wrote her
           back, stating that he had grabbed her buttocks because he


1
    18 Pa.C.S.A. §§ 2709.1(a)(1) and 3126(a)(1), respectively.
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            wished to scare her.     S.C. reported the incidents to the
            school counselor.

(Juvenile Court Opinion, filed March 11, 2015, at 2-3).          On October 22,

2014, the court conducted a hearing and adjudicated Appellant delinquent

for the offenses of stalking and indecent assault. That same day, the court

entered a dispositional order placing Appellant on probation for an indefinite

period. Appellant filed a timely notice of appeal on November 21, 2014. On

November 25, 2014, the court ordered Appellant to file a concise statement

of errors complained of on appeal per Pa.R.A.P. 1925(b).          After the court

granted an extension, Appellant timely complied.

      Appellant raises the following issues for our review:

            WHETHER THE EVIDENCE PRESENTED AT THE TIME OF
            THE ADJUDICATION HEARING WAS SUFFICIENT TO PROVE
            THAT APPELLANT INTENDED TO PLACE ANOTHER PERSON
            IN REASONABLE FEAR OF BODILY INJURY AND/OR THAT
            APPELLANT   INTENDED   TO   CAUSE    SUBSTANTIAL
            EMOTIONAL DISTRESS TO ANOTHER PERSON?

            WHETHER THE EVIDENCE PRESENTED AT THE TIME OF
            THE ADJUDICATION HEARING WAS SUFFICIENT TO PROVE
            THAT APPELLANT’S CONTACT WITH THE COMPLAINANT
            WAS FOR THE PURPOSE OF AROUSING SEXUAL DESIRE IN
            HIM OR THE COMPLAINANT?

(Appellant’s Brief at 8).

      In his first issue, Appellant argues it is unclear whether S.C.’s note

(and Appellant’s response to it) referred to both incidents where Appellant

grabbed S.C.’s buttocks. Appellant contends the evidence does not indicate

how   far    apart   the    two   incidents   occurred.   Appellant   asserts   the


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Commonwealth’s evidence was insufficient to prove Appellant engaged in a

“course of conduct” under the stalking statute. Appellant further claims each

act occurred in a crowded, public setting.     Appellant concedes he said he

grabbed S.C. to “scare” her but claims that concession failed to show

Appellant intended to place S.C. in fear of bodily injury or to cause her

substantial emotional distress.     Appellant concludes the evidence was

insufficient to support his adjudication of delinquency for stalking.     We

disagree.

      The following principles of review apply to a challenge to the

sufficiency of evidence:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [finder] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

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(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The Crimes Code defines the offense of stalking in relevant part as

follows:

           § 2709.1. Stalking

           (a) Offense defined.—A person commits the crime of
           stalking when the person either:

             (1) engages in a course of conduct or repeatedly
             commits acts toward another person, including
             following the person without proper authority, under
             circumstances which demonstrate either an intent to
             place such other person in reasonable fear of bodily
             injury or to cause substantial emotional distress to
             such other person[.]

18 Pa.C.S.A. § 2709.1(a)(1). A “course of conduct” is “[a] pattern of actions

composed of more than one act over a period of time, however short,

evidencing a continuity of conduct.” 18 Pa.C.S.A. § 2709.1(f). “Course of

conduct is established by proof of two related but separate events.”

Commonwealth        v.   Leach,   729   A.2d   608,   611   (Pa.Super.   1999).

“Emotional distress” is defined as “[a] temporary or permanent state of

mental anguish.” 18 Pa.C.S.A. § 2709.1(f). An intent to cause substantial

emotional distress “may be inferred from the words or actions of the

defendant in light of all attendant circumstances.”         Commonwealth v.

D’Collanfield, 805 A.2d 1244, 1249 (Pa.Super. 2002).

      Instantly, Appellant grabbed S.C.’s buttocks during gym class and then

again in the school hallway at a later date, each time without S.C.’s consent.

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S.C. did not testify to the exact dates of each incident but it is evident from

her testimony that the two incidents occurred close in time.2        Appellant

committed the same act on each occasion.           Thus, the Commonwealth

produced sufficient evidence that Appellant engaged in a course of conduct

under the stalking statute.   See 18 Pa.C.S.A. § 2709.1(f); Leach, supra.

Further, Appellant admitted to S.C. he intended to scare her, and Appellant’s

repeated acts of grabbing an intimate part of S.C.’s body perturbed her to

the point that she reported Appellant’s behavior to a school counselor.

Viewed in the light most favorable to the Commonwealth as verdict winner,

the evidence was sufficient to sustain Appellant’s delinquency adjudication

for stalking. See 18 Pa.C.S.A. § 2709.1(a)(1); D’Collanfield, supra.

      In his second issue, Appellant argues his acts were not clearly sexual

in nature. Appellant contends the act of grabbing another person’s buttocks

could be intended to annoy, tease, alarm, scare, or even congratulate

another person, especially when the actor is a teenage boy.          Appellant

asserts he grabbed S.C.’s buttocks on both occasions in a crowded school

environment, not while they were alone or engaged in any intimate conduct.

Appellant claims he did not hold onto S.C.’s buttocks for a substantial

amount of time in either instance, and there was no other evidence that

Appellant committed the acts for the purpose of arousing sexual desire in

himself or S.C. Appellant concludes the evidence was insufficient to support

2
  S.C. testified that the first incident occurred in September 2014.       The
Commonwealth filed the delinquency petition on October 10, 2014.
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his delinquency adjudication for indecent assault. We disagree.

      The Crimes Code defines the crime of indecent assault in relevant part

as follows:

         § 3126. Indecent assault

         (a) Offense defined.—A person is guilty of indecent
         assault if the person has indecent contact with the
         complainant, causes the complainant to have indecent
         contact with the person or intentionally causes the
         complainant to come into contact with seminal fluid, urine
         or feces for the purpose of arousing sexual desire in the
         person or the complainant and:

              (1) the person does so without the complainant’s
              consent[.]

18 Pa.C.S.A. § 3126(a)(1). “Indecent contact” is defined as “[a]ny touching

of the sexual or other intimate parts of the person for the purpose of

arousing or gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101.

See Commonwealth v. Evans, 901 A.2d 528 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (holding evidence was sufficient

to convict defendant of indecent assault where defendant wrapped his arms

around victim and inserted his tongue into victim’s mouth because act would

not   occur    outside   of   context    of   sexual   or   intimate   situation);

Commonwealth v. Capers, 489 A.2d 879 (Pa.Super. 1985) (affirming

defendant’s conviction for indecent assault where evidence supported

conclusion that defendant’s conduct was motivated, at least in part, by

intent to arouse or gratify sexual desire in himself or victim).



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       Instantly, Appellant grabbed S.C.’s buttocks without her consent on

two separate occasions.     Each time Appellant touched S.C., he specifically

targeted and held onto an intimate part of her body. The evidence allowed a

reasonable inference that Appellant repeatedly groped the same intimate

area of S.C.’s body to do more than just startle her.       Viewed in the light

most favorable to the Commonwealth, the evidence was sufficient to

conclude that Appellant had indecent contact with S.C. because he was

motivated, at least in part, by a desire to arouse or gratify sexual desire in

himself or S.C. See 18 Pa.C.S.A. § 3101; Evans, supra; Capers, supra.

Therefore, Appellant’s delinquency adjudication for indecent assault was

supported by sufficient evidence. Accordingly, we affirm.

       Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/21/2016




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