J-A04025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF S.M.F., A MINOR                    IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA

APPEAL OF: S.M.F.
                                                           No. 1032 WDA 2014

                 Appeal from the Judgment Entered May 30, 2014
                 In the Court of Common Pleas of Warren County
                Criminal Division at No(s): CP-62-JV-0000014-2014


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                   FILED APRIL 13, 2015

       Juvenile Appellant, S.M.F., appeals from the judgment of sentence

entered    on    May    30,   2014,     following   her   summary   conviction1   for

harassment, 18 Pa.C.S.A. § 2709(a)(1). Upon review, we affirm.

       The juvenile court set forth the facts and procedural history of this

case as follows:

              [O]n or about February 27, 2014, [] Appellant, a twelve-
          year-old female, while attending school at the Tidioute
          Community Charter School, was directed by a teacher [] to
          enter the office at the school due to her misbehavior.
          [] Appellant closed the door to that office, would not allow
          the teacher in, and [] Appellant and teacher began pushing
          against each other with the door to the office. The teacher
          suffered a shoulder injury as a result. [On March 3, 2014,
____________________________________________


1
  A summary offense is not an act of delinquency under the Juvenile Act. 42
Pa.C.S.A. § 6302. “Thus, an individual who is under the age of 18 and
convicted of a summary offense has not been adjudicated delinquent.” In
re J.M., 42 A.3d 348, 353 (Pa. Super. 2012). However, as discussed infra,
Appellant was originally charged with aggravated assault, as well. Thus, this
case proceeded in juvenile court as an adjudication hearing.


*Retired Senior Judge assigned to the Superior Court.
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         the Commonwealth filed a written juvenile allegation and
         juvenile petition alleging dependency charging Appellant
         with harassment and one count of aggravated assault
         pursuant to 18 Pa.C.S.A. § 2702(a)(3).]           At [the
         adjudication] hearing, the Commonwealth moved to add a
         count of [a]ggravated [a]ssault under 18 Pa.C.S.A.
         § 2702(a)(5) and the [c]ourt granted the motion.       The
         adjudication hearing occurred over two days on April 24,
         2014, and May 30, 2014, with [] Appellant represented by
         private counsel. Following the hearing, the [c]ourt found
         that the Commonwealth did not meet its burden of proof
         beyond a reasonable doubt with respect to the two counts
         of [a]ggravated [a]ssault and, therefore, [] Appellant was
         determined not to be delinquent. The [c]ourt did find []
         Appellant guilty of the summary offense of harassment and
         imposed a sentence of a $100.00 fine, costs, 20 hours of
         community service and a letter of apology to the victim
         pursuant to 42 Pa.C.S.A. § 6303(a)(5).

Juvenile Court Opinion, 7/21/2014, at 1-2. This timely appeal followed.2

       On appeal, Appellant presents the following issues for our review:

         I.     Whether the trial court erred in finding sufficient
                evidence to prove the element of “intent” beyond a
                reasonable doubt for the summary offense of
                harassment, 18 Pa.C.S.A. § 2709(a)(1)?

         II.    Whether the trial court erred in finding that Appellant
                possessed the requisite specific intent under 18
                Pa.C.S.A. § 2709(a)(1), when in fact, Appellant’s
                actions were a manifestation of her disability?

         III.   Whether the trial court erred in disregarding the
                opinion testimony regarding Appellant’s diagnosis of
                Oppositional Defiance Disorder?
____________________________________________


2
   Appellant filed a notice of appeal on June 27, 2014. On that same day,
the juvenile court issued an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The juvenile court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on July 21, 2014.



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Appellant’s Brief at 9 (suggested answers omitted).

      In her first issue presented, Appellant argues that the juvenile court

erred by finding the Commonwealth presented sufficient evidence to support

her adjudication. Id. at 16-20. She claims that the Commonwealth failed to

prove that she had the intent to harass, annoy or alarm the victim as

required under the harassment statute.        Id. at 16.     More specifically,

Appellant contends:

        Appellant’s actions occurred in reaction to a single, isolated,
        exigent circumstance that [the victim] testified was the
        consequence of her own actions, and not those of []
        Appellant. […] Appellant is a special needs child with a
        diagnosis of [Oppositional Defiance Disorder (“ODD”)], a
        behavioral disorder that by its very nature hinders a child’s
        ability to recognize or appreciate that their [sic] behavior is
        defiant.

Id. at 17.

      Thus, in sum, Appellant argues:

        Considering the totality of the circumstances and the
        testimony of [the victim], the [juvenile] court erred by
        inferring that [] Appellant knew or should have known that
        her conduct would harass, annoy, or alarm [the victim]. []
        Appellant was confronted about her behavior three hours
        earlier, which triggered her ODD symptoms and caused her
        to become agitated and defiant.          [] Appellant further
        reacted to being escorted by her teacher into a room with
        another special needs student known to have aggressive
        tendencies.     In [the victim’s] opinion, this caused []
        Appellant to perceive that she had been placed into this
        situation by her teacher. [] Appellant’s reaction to this
        situation included yelling, sitting on the floor, blocking the
        door, and in [the victim’s] own opinion, intending to keep
        [the victim] out of the room. Although [] Appellant likely
        knew that she was blocking the door, at no point during the
        trial was any testimony elicited from which it could be

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        inferred that [] Appellant knew or should have known that
        her actions would harass, annoy, or alarm [the victim].

Id. at 19-20.

      As our Supreme Court has noted, the standard of review used when

evaluating the sufficiency of the evidence in a conviction for a summary

offense is

        whether, viewing all the evidence admitted at trial, together
        with all reasonable inferences therefrom, in the light most
        favorable to the Commonwealth, the trier of fact could have
        found that each element of the offenses charged was
        supported by evidence and inferences sufficient in law to
        prove guilt beyond a reasonable doubt.

Commonwealth v. Williamson, 616 A.2d 980, 981 (Pa. 1992).

      A person may be convicted of harassment “when, with intent to

harass, annoy or alarm another, the person: (1) strikes, shoves, kicks or

otherwise subjects the other person to physical contact, or attempts or

threatens to do the same[.]” 18 Pa.C.S.A. § 2709(a)(1). In addressing the

proper interpretation of the statutory phrase “with intent to harass,” this

Court noted:

        The law does not permit an actor to avoid the consequences
        of [her] conduct by disclaimers of an intent to injure or
        harm or offend or “harass.” Rather, the law obliges the
        factfinder to rely for the discernment of intent upon
        demonstrative manifestation of that intent. Every action
        produces a reaction, every act has an effect. The nature or
        essence of an act is most often, and usually convincingly,
        determined by its effect or result. When an individual
        knows or should know the consequences of his act, [s]he
        is presumed to be aware of the nature of [her] act, and
        [her] decision to perform the act is a manifestation of [her]
        intent to effect the results of [her] act.


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Commonwealth v. Hart, 559 A.2d 584, 587 (Pa. Super. 1989) (citation

omitted) (emphasis in original). “An intent to harass may be inferred from

the totality of the circumstances.”   Commonwealth v. Cox, 72 A.3d 719,

721 (Pa. Super. 2013) (citation omitted).

      Here, the juvenile court opined:

        It can certainly be inferred from [her] conduct that []
        Appellant [] intended to harass, annoy, or alarm the victim
        teacher by engaging in [the chosen] conduct. Appellant
        was a student under the victim’s authority. She knew that
        the teacher wanted to enter the room where [] Appellant
        was placed. She was receiving verbal commands from the
        victim to stop her conduct and allow the victim in. By
        repeatedly kicking against the door and the victim and
        preventing her from entering, even after hearing and
        ignoring the demands of [the victim], it can be inferred that
        [] Appellant intended to harass, annoy, or alarm the victim.

Juvenile Court Opinion, 7/21/2014, at 3.

      Upon review of the record, looking at the totality of the circumstances

in the light most favorable to the Commonwealth as our standard requires,

we agree.   The victim testified that she questioned Appellant, one of her

students, regarding her disrespect towards another teacher and Appellant

started yelling. N.T., 4/24/2014, at 9. Appellant was directed to a nearby

office and told to sit down inside. Id. at 11. Appellant went into the office

and shut the door and dead-bolted it. Id. at 12. There was another student

and a doctor, a special education supervisor, locked in the office with

Appellant. Id. at 12-13. The doctor unlocked the office door and a struggle

between the victim and Appellant ensued. Id. at 13-14. While the victim



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tried to push the door open with her shoulder, Appellant pushed back. Id.

at 15-16, 52. The victim estimated that she was hit in the shoulder by the

door approximately 10-20 times. Id. at 16, 50. While this was happening,

the victim asked Appellant “to please open the door.” Id. at 45. Appellant

was yelling, “leave me alone.” N.T., 5/30/2014, at 55, 66. The doctor, who

was still inside the office with Appellant, was instructing Appellant to get

away from the door to let the victim inside. Id. at 66. The victim testified

that she did not believe that Appellant intended to hurt her, but that

Appellant knew what she was doing and it was Appellant’s intent to keep her

out of the office. Id. at 41-42, 65. The eyewitness doctor testified that she

told Appellant to open the door. Id. at 84. Appellant replied that the victim

put her in the office and she was not moving. Id. The doctor stated that

she “believed that when [Appellant] was in that heightened state [Appellant]

knew it was not right to be pushing against the door, but [] [did] not believe

[Appellant] knew she was hurting [the victim].”     Id. at 107.   The doctor

further stated that she “knew that [Appellant] was pushing the door to keep

[the victim] out.” Id. at 110.

      Here, there is no dispute that the victim was subjected to physical

contact and Appellant was the cause. Based upon all of Appellant’s actions

and words, we believe the Commonwealth proved intent under the

harassment statute.    Despite pleas to open the door at issue, Appellant

persisted in pushing back and yelled to be left alone.     As a student, she

knew or should have known the consequences of her acts against her

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teacher. Her continued perseverance in keeping the victim out of the office

showed Appellant’s intent to annoy, alarm, and harass.              Accordingly,

Appellant’s first issue is meritless.

     We will examine Appellant’s second and third issues as presented

together, wherein Appellant further contends that the juvenile court erred in

convicting her of harassment because she lacked specific intent due to the

manifestation of her ODD.        Appellant’s Brief at 20-27.   Pointing to the

Individuals with Disabilities Education Act, the Pennsylvania Code, and

subsequent case law, Appellant argues, “[c]ourts have grappled with the

difficult question, as to whether special needs children with behavioral issues

should be disciplined by the school system or prosecuted by the judicial

system when their behavior becomes severe.”            Id. at 22.     Appellant

contends that “the alleged victim and the [s]chool both understood that []

Appellant did not possess the intent required of any criminal statute.” Id. at

24. Appellant asserts that the juvenile court erred in failing to “consider the

opinion testimony of [the eyewitness doctor] regarding Appellant’s ODD[,]”

because of her “extensive educational background and work with special

needs children” and she “was the only adult to witness the incident from

within the office where [] Appellant was located.” Id. at 25-26.

      On these issues, the juvenile court determined:

             [] Appellant did not assert an affirmative defense of
         insanity or mental infirmity and the Pennsylvania Rules of
         Juvenile Court Procedure do not provide for such.           []
         Appellant did not file a request for a psychiatric evaluation.
         No case law was uncovered regarding an insanity or mental

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        infirmity defense in a juvenile proceeding.          Instead,
        Appellant is asserting that [] Appellant’s harassing conduct
        was a manifestation of her ODD and, therefore, the [c]ourt
        could not find that Appellant intended to harass, annoy[,] or
        alarm the victim, the mens rea requirement for a conviction.
        [] Appellant cites no support for this proposition and no
        such support could be found. [Thus, there is n]o appellate
        support for the proposition that ODD, recognized as one of
        the most common behavioral and emotional disorders
        among children, without a determination of insanity,
        [constitutes] a defense to criminal conduct.

                           *         *           *

        It is often the juveniles in the delinquency system [who]
        carry this type of diagnosis and, if so, it is addressed at the
        disposition stage of the delinquency action. [The victim and
        the eyewitness doctor], while extremely experienced and
        qualified to work with children with ODD in the educational
        setting, are not psychologists or psychiatrists qualified to
        render expert testimony that [] Appellant was insane, nor
        has [] Appellant asserted [insanity] as a defense in this
        case. While the [c]ourt initially permitted testimony, it did
        not consider the testimony in determining the intent issue
        with respect to any of the crimes charged. The [c]ourt’s
        refusal to consider the testimony as such was not error and,
        if in error, was harmless.

Juvenile Court Opinion, 7/21/2014, at 4-5.

     We agree. “The general presumption is that every man is normal and

is possessed of ordinary faculties; such defenses as intoxication, insanity,

and aphasia (or a mind not conscious of its acts) are affirmative defenses,

and the burden is on the defendant to establish them.” Commonwealth v.

Morrison, 109 A. 878, 880 (Pa. 1920). “Under Pennsylvania Rule of

Criminal Procedure 573, a defendant must disclose the assertion of certain

defenses, such as alibi or insanity, before the commencement of a trial,

thereby giving the Commonwealth notice and the opportunity to prepare its

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case in chief.” Commonwealth v. Collins, 810 A.2d 698, 702 (Pa. Super.

2002), citing Pa.R.Crim.P. 573(C)(1)(a), (b). Upon review, the only

testimony presented related to ODD was the testimony offered by the victim

teacher and the eyewitness doctor. Neither were qualified as experts. Their

opinion testimony pertaining to ODD was limited to the challenges those

witnesses faced with regard to educating Appellant. There was no medical

testimony describing the actual condition or its effects on Appellant

specifically.     The witnesses that did testify knew Appellant’s diagnosis,

worked with her regularly in the educational setting, and still opined that

Appellant understood the harassing nature of her conduct.       Most notably,

both witnesses stated that they did not believe Appellant intended to harm

the victim physically, but that Appellant was able to appreciate that her

conduct was nevertheless alarming, annoying, and harassing.         Thus, we

conclude that Appellant did not meet her burden of proving an affirmative

defense.        Having already determined there was sufficient evidence to

support her conviction, Appellant’s second and third issues must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015


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