J-S56033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.J.D., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
APPEAL OF: J.J.D.




                                                     No. 200 MDA 2016


           Appeal from the Dispositional Order November 25, 2015
              In the Court of Common Pleas of Lancaster County
             Juvenile Division at No(s): CP-36-JV-0000374-2015

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JULY 19, 2016

      J.J.D. (“Appellant”) appeals from the dispositional order entered by the

Court of Common Pleas of Lancaster County, Juvenile Division, after the

court adjudicated Appellant delinquent for committing an act that would

constitute theft by unlawful taking if he were an adult. Appellant presents a

challenge to the weight of the evidence centered on a discrepancy between

the arresting officer’s written report and his oral testimony. We affirm.

      The lower court aptly summarizes the factual and procedural history as

follows:

      At the time of the adjudicatory hearing, [Appellant] was 18 years
      old. On or about May 6, 2015, the Victim and [Appellant] were
      at the park. According to the Victim, [Appellant] was “doing
      drugs,” and, because she did not want to be involved with that
      activity, she decided to go home.          Uninvited, [Appellant]
      followed her home and into her residence despite her telling him
      that she did not want him there. Upon entering her home,
      [Appellant] went straight to the bathroom and locked the door

*Former Justice specially assigned to the Superior Court.
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     where the Victim believes he continued to use drugs.
     [Appellant] then exited the bathroom and laid on the living room
     floor. At this point, the Victim said she became scared that he
     was dying and called 911; however, she hung up before
     speaking to anyone. 911 dispatch then called the Victim’s home,
     but she did not answer the phone out of fear. Meanwhile,
     [Appellant] entered and left the bathroom several times. The
     Victim then grabbed the phone and locked herself in her
     bedroom where she proceeded to call her mother. Shortly
     thereafter, her father called her, and she told him that she was
     scared and that [Appellant] would not leave the house.
     Approximately 5 to 10 minutes later, she received a phone call
     and was told that [Appellant] was outside with police officers and
     that she was safe. A police officer then approached her as she
     exited the house[,] handed her a Samsung Galaxy 3 Tablet, and
     asked “is this yours.” She indicated that it was, and the officer
     informed her that he had retrieved it from [Appellant]. She in
     turn indicated that [Appellant] did not have permission to take
     her tablet. (Adjudication, N.T. 10/5/16 at 5-13).

     Officer Jesse James Blank of the Southern Regional Police
     Department testified that he was dispatched to the Victim’s
     address for a 911 hang-up call. Upon his arrival approximately
     10 minutes later, he encountered [Appellant] exiting the home
     via the front door. He further testified that [Appellant], who was
     breathing heavily, indicated that this was the home of his
     girlfriend and that they were fighting. Officer Blank noticed a
     bulge at [Appellant’s] right hip, and, being concerned that it
     might be a weapon, the Officer asked him to lift his shirt,
     revealing the Victim’s Samsung Galaxy 3 Tablet. Upon learning
     from the Victim that [Appellant] did not have permission to take
     her tablet, Officer Blank charged [Appellant] with one count [of]
     Theft by Unlawful Taking (Id. at 14-17), and, following the
     adjudicatory hearing held on October 8, 2015, he was
     adjudicated delinquent of the offense. (Id. at 27).

     ***
     On cross-examination, counsel for [Appellant] questioned Officer
     Blank regarding the fact that he did not specifically indicate in
     his report that he had asked [Appellant] to lift his shirt. The
     officer acknowledged this fact, along with the fact that his report
     indicated that [Appellant] lifted his shirt, reached for the tablet
     and gave it to the officer. He also acknowledges that [Appellant]


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      stated that “his girlfriend had given it to him to hold on to.” (Id.
      at 19).

      ***
      [The court adjudicated Appellant delinquent and, at a disposition
      hearing held on November 25, 2015, issued an order directing
      Appellant] to complete the Youth Advocate Program, participate
      in drug and alcohol services, complete 30 hours of community
      service, participate in the Center for Community Peacemaking
      program and pay court costs. (Disposition Order, 11/25/15).

Lower Court Opinion, filed March 29, 2016 at 1-3.

      Appellant presents one question for our review in this timely appeal:

      WAS THE [JUVENILE] COURT’S FINDING THAT [APPELLANT]
      COMMITTED THE OFFENSE OF THEFT BY UNLAWFUL TAKING
      AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE
      EVIDENCE SHOWED CONFLICTING ISSUES REGARDING INTENT,
      IN THAT THE OFFICER WROTE IN HIS REPORT THAT
      [APPELLANT] TURNED THE STOLEN ITEMS OVER TO HIM AS HE
      EXITED THE HOME BUT TESTIFIED THAT HE STOPPED
      [APPELLANT] AS HE EXITED THE HOME AND DISCOVERED
      [APPELLANT] WAS IN POSSESSION OF A STOLEN ITEM?


Appellant’s brief at 5.

      Our review of a weight claim in an appeal from a juvenile adjudication

is the same as our review of a challenge to the weight of the evidence in an

appeal from a criminal conviction:

      [W]e may only reverse the [juvenile] court's [adjudication of
      delinquency] if it is so contrary to the evidence as to shock one's
      sense of justice. Moreover, where the [ ] court has ruled on the
      weight claim below, an appellate court's role is not to consider
      the underlying question of whether the verdict is against the
      weight of the evidence. Rather, appellate review is limited to
      whether the [juvenile] court palpably abused its discretion in
      ruling on the weight claim.




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      Hence, a [juvenile] court's denial of a weight claim is the least
      assailable of its rulings.     Conflicts in the evidence and
      contradictions in the testimony of any witnesses are for the fact
      finder to resolve.

In re J.M., 89 A.3d 688, 692 (Pa.Super. 2014) (citation omitted), appeal

denied, 102 A.3d 986 (Pa. 2014).

      Appellant assails the juvenile court’s ruling on his weight of the

evidence claim filed in his post-dispositional motion because, he claims, the

officer’s testimony that he directed Appellant to lift his shirt departed from

his written report, which contained no reference to such a directive.     This

variation between the officer’s written report and his testimony, Appellant

maintains, undermined the officer’s credibility as a witness. We disagree.

      Though the written report did not state that the officer directed

Appellant to lift his shirt to reveal what he was hiding underneath, it

nevertheless stated that Appellant lifted his shirt in the officer’s presence,

surrendered the tablet to the officer, and explained that the Victim, “his

girlfriend,” had given it to him.   It further stated that the Victim denied

giving Appellant permission to take the tablet.       Though not identically

worded, the officer’s written report and testimony were substantially

consistent in all meaningful respects and, importantly, not contradictory. It

was, therefore, reasonable for the court to infer from the totality of the

circumstances that the officer had encountered Appellant while Appellant

was in the act of taking the Victim’s tablet without her permission.

Accordingly, we discern no abuse of discretion in the juvenile court’s denial



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J-S56033-16



of Appellant’s post-dispositional motion asserting that the weight of the

evidence belied wrongful intent.

     Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2016




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