J-S03020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF D.F., A JUVENILE               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: D.F., A JUVENILE

                                                       No. 1483 EDA 2014


             Appeal from the Dispositional Order February 18, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-JUV-0000436-2010


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

JUDGMENT ORDER BY PANELLA, J.                         FILED MARCH 30, 2015

        D.F., a juvenile, appeals from the dispositional order entered February

18, 2014, following his adjudication of delinquency on the charges of rape by

forcible compulsion1 and unlawful restraint.2 No relief is due.

        For a detailed recitation of the facts of this case, we direct the reader

to the trial court’s April 16, 2014 opinion. See Trial Court Opinion, 4/16/14

at 1-5 (unnumbered). D.F. was charged with the rape and unlawful restraint

of a female acquaintance.            On January 28, 2014, the juvenile court

adjudicated D.F. delinquent on both charges. The juvenile court, in imposing

its dispositional order, committed D.F. to an indefinite period of detention

and ordered that he register as a juvenile sex offender.        See Disposition
____________________________________________


1
    18 Pa.C.S.A. § 3121(a)(1).
2
    18 Pa.C.S.A. § 2902.
J-S03020-15



Order, 2/18/14. On February 20, 2014, D.F. filed a post-disposition motion,

which the juvenile court denied. This timely appeal followed.

       On appeal, D.F. alleges that the evidence was insufficient to support

his adjudication of delinquency for the crime of rape.3

       When a challenge to the sufficiency of the evidence is made, our
       task is to determine whether the evidence and all reasonable
       inferences drawn therefrom, when viewed in the light most
       favorable to the Commonwealth as the verdict winner, were
       sufficient to enable the fact-finder to find every element of the
       crime charged beyond a reasonable doubt. In applying the above
       test, we may not weigh the evidence and substitute our
       judgment for the fact-finder. Moreover, we must defer to the
       credibility determinations of the [juvenile] court, as these are
       within the sole province of the finder of fact. The trier of fact,
       while passing upon the credibility of witnesses, is free to believe
       all, part, or none of the evidence.

In re J.M., 89 A.3d 688, 691 (Pa. Super. 2014), appeal denied, 102 A.3d

986 (Pa. 2014) (citation omitted).

       We have reviewed D.F.’s brief, the relevant law, the certified record,

and the well-written opinion of the Honorable Nathaniel C. Nichols.      Having

determined that the juvenile court’s opinion ably and comprehensively

disposes of appellant’s issues on appeal, with appropriate reference to the

record and without legal error, we will affirm on the basis of that opinion.

       Dispositional order affirmed.
____________________________________________


3
  In his statement of questions involved, D.F. additionally alleges that his
adjudication of delinquency for rape was against the weight of the evidence.
See Appellant’s Brief at 8. However, as D.F. does not address this issue in
the argument section of his appellate brief, we consider this issue
abandoned on appeal.



                                           -2-
J-S03020-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




                          -3-
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       IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                                   JUVENILE DIVISION


IN THE INTEREST OF D.F.,                                 NO.    20.13-000767

                      a Juvenile                         Juvenile ID No. J2010-000436



                                       OPINION


NICHOLS, J.                                              FILED: -1./ ~ i lo~ I~


r.   Procedural Posture.

        On June 25, 2013, this petition was filed charging the juvenile, D.F., with Rape

and related offenses. The court held its hearing on this Juvenile Petition on January 28,

2014 and adjudicated D.F. delinquent in connection with Rape and Unlawful Restraint.

At the disposition hearing, the court committed the juvenile to an indefinite period of

placement at a facility where he was ordered to receive sex offender therapy. Counsel

for the juvenile filed a post disposition motion assailed both the sufficiency of the

evidence (as to the forcible compulsion aspect of the Rape) and the weight of the

evidence. We find no basis to support the juvenile's contentions and shall address

them ad sertettm.

II. Te_stimgny.

        The trial testimony offered by the victim, a young woman, was clear, cogent and

credible. She offered a plain-spoken rendition of the salient events of December 24,

2012, in Upper Chichester Twp., Delaware County, Pennsylvania. The victim was

                                                                                  r -~EX~H~IB!'!l~r-•
                                                                               I~
                                                                                    IA_
                                                                                                       J
                                                                            Circulated 03/03/2015 02:31 PM




friendly with D.F.   Apparently, the juvenile was re1eased·from placement at Glen Mills

School on a holiday "home pass." She acknowledged that her relationship with D.F.

had a sexual component and that she was going to "meet up with hirn." NT at 9. See

also NT at 77. After calling her cell phone, D.F. arrived at the young lady's home.

When the two got together, D.F. became "playful" and, at one point, took the victim's

cell phone and would not let her retrieve it. D.F. also was being a bit aggressive in

some amorous advances which caused the victim to say to D.F.,       '' . . that he's going to

be a rapist one day." NT at 11. While at the rear of the victim's house the victim's cell

phone rang but she could not answer it because the juvenile retained possession of the

device. Eventually, the vlcttrn regained possession of her phone from the juvenile and

realized that her cousins had been trying to call her on her cell phone. She and the

juvenile then returned to the front of the house where her cousins were located. NT at

10¥12.

         The pair then walked around the neighborhood for a little while. Eventually, D.F.

grabbed the young woman's cell phone again and held it in a manner that rendered the

victim incapable of retrieving it. NT at 13. D.F. told her he would relinquish lt if she

would walk to the corner to his deceased aunt's house. Id. at 14. She agreed and,

while he again relinquished the phone to her, D.F. grabbed her hoodle-tvpe jacket in

the back and was able to control her movements. NT at 14-15. D.F. asked the young

lady if she wanted to see his house and while she said something like," ... no, not

really .... " Nevertheless, he took her to the rear of a house where they went toward. an

enclosed porch. NT at 16. His effort to enter the enclosed porch was thwarted by its
                                                                              Circulated 03/03/2015 02:31 PM




locked door. NT at 16-17.     While still gripping the victim's jacket, the juvenile then put

his hand down the front of the victim's pants and inserted a finger into her vagina. NT

17-18. The victim testified that his finger in her vagina felt horrible and painful. NT at

18.

       With his fingers still Inside her vagina, D.F. then maneuvered the victim to a

parked car that was three to five steps away from the porch. NT at 19. She explained

that he had "probably like one, maybe two [fingers Inside her]" as she "was

walking/being dragged." NT at 78. When asked on cross examination if it was like

having her feet dragged on the floor, she responded 1'No, no, but I had to walk .... If I

stopped there, my vagina was going to get scratched up, Me walking, but it still got

scratched up, NT at 78. In follow·up juvenile's counsel asked, 1'So he's dragging you a

couple of steps with his fingers inside of you, you say your vagina - you - he's hurting

your vagina and you do nothing to stop him?" Her reply: '1Right." NT at 79-80.

       The victim described the situation as she was positioned at the car: 1'He [D.F.]

kind of had me like you-I'm    going to say like it almost felt as If I was getting arrested.

That's how I'm going to say, like I was getting arrested, but like face down kind of ..

Like myself was on the car." NT at 20. The juvenile bent the victim over the car,

pulled her pants down and inserted his penis into her vagina. NT at 20-21. In offering

detalls as to her position with respect to the car, the victim said, "So I'm going to say

the back of the car. I thlnk It was the back of the car. My - the top of my body is

laying down flat on the back of the car on the trunk. I don't got enough leg room or
                                                                          Circulated 03/03/2015 02:31 PM




nothing. I can't move back. We were so tight together. I can't - I couldn't do nothing.

NT at 28.

      The victim was also questioned concerningphysicalevidence: her pants. She

said that the zipper to her pants were not broken before her encounter at the back of

the car and that it had to have been broken while D.F. pulled her pants down. NT at 30

& 84. In describingthe continuing event, the victim testified:


                    A. Afte.r he did - after he inserted himself into me,
                   within me - I was just like I didn't like it . Like I
                    didn't like it. I been - I told him that I didn't want to
                    be there. I wanted him to stop. I wanted to go
                    home. I wanted to be with my cousin, Catherine, my
                    little sister, do you feel me? And that's when I was
                    like, I'll do anything for you to get off me. . .. And
                   then he said okay. And that's when he kind of like
                   forced me to - this is uncomfortable, suck his penis
                   should I say?
                   Q. Okay. How - well let me, let me - you said to
                   him, I'll do anything for you to get off me?
                   A. Yes.
                   Q. At that point, did he still have his penis in your
                   vagina?
                   A. Yes.
                   Q. Okay. Did he take his penis out of your vagina
                   then?
                   A. Yes.
                   Q. Okay. And did he turn you around or how did you
                   - how did he get you into the position where you
                   were?
                   A. BecauseI kind of like turned, kind of turned. Like
                   he didn't force me to turn, he didn't turn me, like
                   physicallyturn me around.
                   Q. Okay.
                   A. But he kind of like when I got up, he kind of like
                   not spun me, but he kind of llke pulled me a little bit
                   and then I put his ...
                   Q. How - you just went like this, so did he use his
                   hand to push you down?
                                                                             Circulated 03/03/2015 02:31 PM




                      A. Yeah, he used his hand.
                      Q. Okay. And what part of your body did he touch
                      with his hand?                      ·
                      A. My head.
                      Q, He put his hand on your head and pushed you
                      down?
                      A. Yes.
                     Q. Okay. And did he - so your head was near his
                     penis. Correct?
                     A. Correct.
                     Q. Did he force you to put his penis into your mouth?
                     A. Yes.

NT at 22-23.

       The victim's cousin (who resides with the victim) and who saw the two walk

away together, testified that the victim returned to the home upset and crying. NT

124. The cousin found the victim behind a locked door and when she was admitted,

the cousin asked what was wrong and inquired whether D.F. had done something to

her. NT at 125-26. The question amplified the victim's tears. NT at 125-26. Finally,

the victim offered an explanation; an explanation that corroborated much of what was

presented during the victim's testimony. Thts witness' offerings were credible and

beyond reproach. NT at 126-27.


III. Attributes of Review

       Initially, we note that our supreme court has clarified the post-dispositlon

handling status of juvenile cases In the absence of a legislative mandate. It has been

determined that appeals in delinquency proceedings should track the appellate rules.

See In re the Interest of D.S., 614 Pa. 650, 655-58, 39 A.2d 968, 971~73 (2012)
( discussion of specific, post-adjudication procedural issues related to juvenile
                                                                             Circulated 03/03/2015 02:31 PM




delinquency cases).     In evaluating the sufficiency of the evidence in this juvenile

proceeding:

                ... all the evidence admitted at trial, together with all
        reasonable inferences therefrom, [are considered] in the light most
        favorable to the Commonwealth, [to determine If the court] ...
        could have found that each element of the offense[s) charged was
        supported by evidence and inferences sufficient in law to prove
        guilt beyond a reasonable doubt. This standard is equally applicable
        to cases where the evidence is circumstantial rather than direct so
        long as the combination of the evidence links the accused to the
        crime beyond a reasonable doubt. Moreover, it is the province of
        the [court] ... to pass upon the credibility of witnesses and the
        weight to be accorded the evidence produced. [As the trial court is
        t]he factfinder (, it] 1s free to believe all, part or none of the
        evidence. The facts and circumstances established by the
        Commonwealth need not be absolutely incompatible with the .
        [juvenile]'s innocence, but the question of any doubt is for the .
        [trial court) unless the evidence be so weak and inconclusive that
        as a matter of law no probablllty of fact can be drawn from the
        combined circumstances.

In re   T.B., 11 A.3d 500, 504 (Pa.Super. 2010)    quoting Commonwealth        v. A. W. c;

951 A.2d 1174, 1177 (Pa.Super. 2008).

        Juvenile's counsel posits a post-disposition motion which also questions the

weight of the evidence. Identical standards apply in delinquency proceedings and cases

involving adults, In re J.B., 69 A.3d 268, 278 (Pa.Super. 2013).

         A motion for a new trial based on a claim that the verdict is against the
         weight of the evidence is addressed to the discretion of the trial court.
         Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751-
        52 (2000); Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d
         1177, 1189 (1994). A new trial should not be granted because of a
        mere conflict in the testimony or because the judge on the same facts
        would have arrived at a different conclusion. Wldme~ ... at 319-20,
        744 A.2d at 752. Rather, "the role of the trial judge is to determine that
        1notwithstanding
                           all the facts, certain facts are so clearly of greater
        weight that to ignore them or to give them equal weight with all the
        facts is to deny justice.' "Id. at 3201 744 A.2d at 752 (citation omitted).
                                                                           Circulated 03/03/2015 02:31 PM




       It has often been stated that 'a new trial should be awarded when the
       [fact-finder's] verdict is so contrary to the evidence as to shock one's
       sense of justice and the award of a new trial is imperative so that right
       may be given another opportunity to prevail.' Brown, 538 Pa. at 435,
       648 A.2d at 1189.


In re J~B,1 supra at 277. This court's reconsideration of lts own decision-making, in

rendering a decision on the weight of the evidence does not presuppose a purposeless

process. In the context of a delinquency proceeding's bench trtal (where the trial court

saw and heard the witnesses and the presentation of other evidence), the trial court's

exercise of its review discretion "imports the exercise of judgment, wisdom and skill so

as to reach a dispassionate conclusion within the framework of the law ... ". See

Widmer, supra at 322, 744 A.2d at 753 (quotation omitted). See also

Commonwealth v. Clay,_         Pa.~·_,       64 A.3d 1049,1055-56 (2013)(contrast

between appellate court review of the weight of the evidence and trial court review).

       With these considerations in mind we assess the issues at hand.



IV. Sufficiency of the Evidence.

      While the juveni!e1s Post Disposition Motion speaks generally in terms of

sufficiency of the evidence, the only focus rests upon the rape charge. We limit our

discussion accordingly. The substance of the charge in pertinent part follows:

      Rape
      A person commits a felony of the first degree when he engages in
      sexual intercourse with another person not one's spouse:
      (1) by forclble cornputston:                ·

      (2) by threat of forcible compulsion that would prevent resistance
      by a person of reasonable resolution;
                                                                           Circulated 03/03/2015 02:31 PM




18 Pa.CS.A. § 3121. The victim of a rape need not resist. 18 Pa.C.S.A. § 3107

(Resistance not required). "[T]he force necessary to support a conviction of rape ...

need only be such as to establish lack of consent and to induce the [victim] to submit

without additional resistance ....   The degree of force required to constitute rape is

relative and depends on the facts and particular circumstance of the case."

Commonwealth v. Rhodes, 510 Pa. 537, 554, 510 A.2d 1217, 1226

(1986)(comprehensive discussion of the contours of "forcible compulsion'') (citations

omitted).

       In contrast to the above, juvenile's counsel directs our attention to a case where

the appellate court focused on the victim's decision-making in succumbing to another's

sexual overtures.   Commonwealthv. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988).

The juvenile's counsel asserts that Mlinarich"implicitly" dictates when there is lack of

consent, but no showing of physical force, threat of physical force, or psychological

compulsion, there ls no forcible compulsion.

       In Mlinarich, the accused's wife volunteered to assume custody of a neighbor's

daughter alter the young girl had been committed to a detention home for previous

misconduct at her father's home. Id. at 249-50, 542 A.2d 1336-37. The defendant

began to take liberties with the troubled teen when his wife was not at home. Id. at

250-51, 542 A.2d 1337. He told the girl that if she failed to cooperate with his

demands for sexual Intercourse, he would have her returned to the detention home.

While the young girl protested and apparently experienced pain during these events, no
                                                                           Circulated 03/03/2015 02:31 PM




evidence presented reflected actual physical resistance or defendant's employment of

force. Id. at 250-51, 542 A.2d 1337.

       Juvenile's counsel's misplaced reliance offers no refuge for D.F.'s conduct. The

Mlinarich record lacked evidence of any other threat, force or compulsion as the

prelude to a sexual encounter. This is not, as argued by juvenile's counsel, a situation

where the juvenile employed verbal means to pressure or manipulate hls vulnerable

victim during the encounter. Her will and corporeal autonomy were overborne by the

juvenile's menacing actions from which she had no escape or relief other than through

submission.

       The young victim offered a detailed explanation of events. Here, the victim was

compelled by the juvenile to travel to the rear of a home (both through his vise-llke grip

of the victim's clothing and his persisting insertion of his fingers into her pudendum).

The victim explained that the digital component actually induced pain. Then, the

juvenile's actions made. the victim feel as if she were physically handled (in being bent

over the rear of a car) as if she was subject to an arrest. While the articulation is

subject to some interpretation, this court viewed that testimony of a young person as

indicative of a level of compulsion well beyond acquiescence (as in Mlinarich) to

another's verbal statements. The physical evidence, the damage to the victim's zipper

and her testimony regarding the mechanism of the damage further revealed an

application of unwanted physical power. Combined, these showed that the juvenile

acted as an assailant and employed force to achieve his sexual depredation.     These

factual distinctions draw a clear line between the circumstances In the two situations.
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           Moreover, while D.F.'s counsel's argument seeks this court's endorsement of

    Mlinarichas the latest and current word on the issue of forcible compulsion, we

    recognize that Mlinarichis not only limited by its factual circumstances, but as a

    plurality decision, it lacks precedential effect as to other             cases'.    See Commonwealth

    v. Bethea, 574 Pa. 100, 111, 828 A.2d 1066, 1073 (2003)(the result of a plurality

    decision carries precedential weight only as between the parties)(citation omitted). See

    also Commonwealth v. Henry, 550 Pa. 346, 365-66 n.6, 706 A.2d 313, 322 n.6

    (1997) (only where other opinions agree with decisional language in plurality opinion as

    to the reasoning compelling the result shall such language be accorded binding

    precedential effect).

           The continued efficacy of Mlinarichmust also be considered in an historical

    context.   Both that decision and Berkowib2 triggered significant action in the state

    legislature. Ultimately, several changes were made to overhaul the statutory scheme

    for sex crimes. See generally Note, 40 Vill.L.Rev. 193, 216-19 (1995). In 1995, as part

    of a special legislative session, the General Assembly clearly altered the legal landscape

    by providing a definition for "forcible compulsion": "Compulsion by use of physical,

intellectual, moral, emotional or psychological force, either express or implied. The

term includes, but is not limited to, compulsion resulting in another person's death,

whether the death occurred before, during or after sexual intercourse."                           See 18


I
   Our attention has also been directed to another case which juridically distanced itself from Mllnarld1 based on its
split decision. Commonweotth 11, Berkowitz, 415 Pa.Super, 505, 517 n.4, 609 A.2d 1338, 1344 n.4
( I 992)(recogniz.ing Mllnuricl: as a "non-binding precedent"). In spite of this, the Berkowitz decision eventuated in
the discharge of the rape conviction based upon a finding that the record did not support a finding of" forcible
compulsion." Id. a1524-25, 609 A.2cl 1347-48, tif/'d537 Pa. 143, 152-53, 641 A.2d 1161, 1166(1994).
2
  See footnote 1, supra.
                                                                           Circulated 03/03/2015 02:31 PM




See 18 Pa.C.S.A. § 3101 (effective May 31, 1995 - Senate Bill 2). Upon passage of the

199? amendments, Senator Mellow, a cosponsor of the Senate bill, remarked:

              The important thing with this piece of legislation is that it
              closes a very important loophole that was pointed out to us by
              the Pennsylvania Supreme Court, because in Pennsylvania we
              should have the very clear understanding to anyone who wants
              to commit the violent crime of rape that in Pennsylvania "no
              means no" and the Senate Bill No. 2 will accomplish that.

Sen. Leg. J. 24 (Jan. 31, 1995).

       While the facts presented demonstrably distinguish the juvenile's situation from

that offered In Mlinarich(and Berkowitz), these other matters also serve as

reminders that our analysis cannot be undertaken carelessly or without concern for all

the details. The evidence clearly and adequately described the juvenile's restraint of

the victim during intercourse and his use of force or the threatened use of force against

the victim in bringing her to a remote location and in situating her for the sexual act.

For the above reasons, we are satisfied, beyond a reasonable doubt, that the elements

of the Rape charge were firmly established by the evidence presented. Thus, the

challenge to the sufficiency of the evidence fails.

      The court acknowledges that juvenile's counsel did a fine job in finding areas of

cross-examination to identify potential weak points in the victim's testimony. The

juvenile's representative emphasized points where the victim confessed a lack of

recollection or a clear explanation of how certain specific events occurred.

Nevertheless, counsel was unable to shake the victim's certitude demonstrated on the

precise points that established the elements of rape. Nor was counsel able to cause the

court to find that the young woman was engaged in a prevarication. This court felt that
                                                                             Circulated 03/03/2015 02:31 PM




the victim outlined sufficient details, in a believable fashion such that the elements of

the crimes were established.



V. Weight of the Evidence.

       The previously referenced standard for assessing the weight of the evidence calls

upon this court to consider whether the decision deviates so significantly from the

evidence such as to "shock one's sense of justice."

       Again, we will look to Mlinarichas the basis for evaluation. Certainly this is not

the equivalent of Mlinar/chwhere the victim could have made " ... a deliberate choice

to avoid the encounter even though the alternative may have been an undesirable

one." The victim here had no choice and no options. She was cornered and, absent

any ability to retreat, the juvenile forced himself upon the girl In the most despicable

way. As noted in Mlinarich,the critical distinction rest upon a finding of volition. In

Mlinarich, the victim possessed the ability to make a decision. If she elected against

the desire of the perpetrator, she faced undesirable potential consequences (i.e. a

threatened return to a juvenile facility). But, a choice (albeit a Hobson's choice), was

available. Here, the involuntariness of the victim's submission is patent. The juvenile

used his size and presence to prevent her from doing anything but acquiescing to his

odious overtures.   These facts meet the objective standard, beyond a reasonable

doubt, to establish the degree of compulsion sufficient to establish the element

necessary to support a charge of rape and a finding of delinquency against D.F.
                                                                                                     Circulated 03/03/2015 02:31 PM




The evidence offered allows no place for the court's conscience to be shocked. Quite

the contrary, we harbor no hesitation in confirming that the evidence evinced the

juvenile's delinquent act.



V. Conclusion.

       Our rigorous review of the record engendered by this appeal has only

reconfirmed the rightness of our original result. For that reason, the Juvenile's Appeal

should be denied.



                                                 BY THE COURT:




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