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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: N.G., A MINOR                       :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
                                           :
APPEAL OF: N.G.                            :        No. 287 EDA 2015

              Appeal from the Dispositional Order January 9, 2015
              In the Court of Common Pleas of Philadelphia County
               Juvenile Division at No(s): CP-51-JV-0002891-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED MARCH 09, 2016

        Appellant, N.G., appeals from the dispositional order entered in the

Philadelphia County Court of Common Pleas, following her adjudication of

delinquency for aggravated assault.1 We affirm the dispositional order.

        The relevant facts and procedural history of this case are as follows.

On or about October 13, 2014, A.C. [“Victim”] encountered Appellant and

Appellant’s older sister, C.G., at Conrad Square in Philadelphia.   Appellant

and C.G. confronted Victim because Victim’s brother had made fun of

Appellant. C.G. yelled at Victim and tried to get Victim to fight. Instead of

fighting, Victim went to get her mother to help resolve the situation. When

Victim’s mother arrived, C.G. and Victim’s mother engaged in a verbal

altercation. After the verbal altercation between C.G. and Victim’s mother

ended, Victim believed the situation had been resolved. Appellant, however,

then yelled at Victim and challenged Victim to a fight. Victim tried to walk


1
    18 Pa.C.S.A. § 2702(a)(1).
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away, but Victim and Appellant began fighting after Appellant grabbed

Victim’s hair. During the fight, Victim and Appellant ended up on the ground

with Appellant on top of Victim.      Appellant subsequently smashed Victim’s

head    into   the   pavement   repeatedly,   which   caused   Victim   to   lose

consciousness. Several adults pulled Appellant off Victim, and an ambulance

transported Victim to the hospital.

       On November 4, 2014, the Commonwealth filed a petition to

adjudicate Appellant delinquent for the offenses of recklessly endangering

another person (“REAP”), simple assault, and aggravated assault.         In the

delinquency petition, the Commonwealth graded the aggravated assault as a

second-degree felony (“aggravated assault—F2”); however, the description

of the offense used the language for aggravated assault graded as a first-

degree felony (“aggravated assault—F1”).       On January 9, 2015, the court

held an adjudication hearing. Following the hearing, the court adjudicated

Appellant delinquent of aggravated assault—F1 and sentenced Appellant to

probation until further court order. On January 20, 2015, Appellant timely

filed a notice of appeal.   On March 11, 2015, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Appellant timely complied on April 6, 2015.

       Appellant raises the following issues for our review:

          WAS NOT THE EVIDENCE INSUFFICIENT TO ADJUDICATE
          [APPELLANT] OF AGGRAVATED ASSAULT AS A FELONY OF
          THE SECOND DEGREE, AS CHARGED AS THERE WAS NO


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         WEAPON INVOLVED AND [VICTIM] WAS NOT A SPECIAL
         VICTIM UNDER [18 PA.C.S.A. § 2702(C)]?

         WAS NOT THE EVIDENCE INSUFFICIENT TO ADJUDICATE
         [APPELLANT] OF ANY OFFENSE WHERE THE COMPLAINING
         DOCUMENT CHARGED AN ASSAULT ON OCTOBER 13, 2014
         WHILE THE WITNESSES TESTIFIED VARIOUSLY THAT
         WHAT HAPPENED OCCURRED ON OCTOBER 14 OR
         OCTOBER 15, 2014?

(Appellant’s Brief at 2).

      For purposes of disposition, we combine Appellant’s issues. Appellant

argues the Commonwealth failed to prove the necessary elements to

adjudicate   Appellant      delinquent   of   aggravated   assault—F2    under   18

Pa.C.S.A. §§ 2702(a)(3), (a)(4), (a)(5), (a)(6), (a)(7), or (a)(8). Appellant

avers Victim does not qualify as a Section 2702(c) special victim as

necessary to adjudicate Appellant delinquent of aggravated assault—F2

under Sections 2702(a)(3), (a)(6), or (a)(7).          Appellant also claims the

Commonwealth failed to prove Appellant used a deadly weapon during the

assault as necessary to adjudicate Appellant delinquent of aggravated

assault—F2 under Section 2702(a)(4).          Appellant further asserts that Victim

does not qualify as a teacher, school board member or other employee as

necessary to adjudicate Appellant delinquent of aggravated assault—F2

under Section 2702(a)(5). Appellant finally contends Victim is not under six

years of age as necessary to adjudicate Appellant delinquent of aggravated

assault—F2    under    Section     2702(a)(8).      Appellant   also    argues   the

Commonwealth failed to prove the facts asserted in the delinquency petition


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because the date of the incident differed between the delinquency petition

and the testimony presented at the adjudication hearing. For these reasons,

Appellant concludes the evidence was insufficient to support her adjudication

of delinquency for aggravated assault—F2, and this Court should vacate

Appellant’s adjudication of delinquency. We disagree.

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

          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)

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

2003)).

      The Crimes Code defines aggravated assault as follows:

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       § 2702. Aggravated assault

       (a) Offense defined.—A person is guilty of aggravated
       assault if [s]he:

          (1) attempts to cause serious bodily injury to
          another, or causes such injury intentionally,
          knowingly   or   recklessly  under   circumstance
          manifesting extreme indifference to the value of
          human life;

          (2) attempts to cause or intentionally, knowingly, or
          recklessly causes serious bodily injury to any of the
          officers, agents, employees or other persons
          enumerated in subsection (c) or to an employee of
          an agency, company or other entity engaged in
          public transportation, while in the performance of
          duty;

          (3) attempts to cause or intentionally or knowingly
          causes bodily injury to any of the officers, agents,
          employees or other persons enumerated in
          subsection (c), in the performance of duty;

          (4) attempts to cause or intentionally or knowingly
          causes bodily injury to another with a deadly
          weapon;

          (5) attempts to cause or intentionally or knowingly
          causes bodily injury to a teaching staff member,
          school board member or other employee, including a
          student employee, of any elementary or secondary
          publicly-funded   educational     institution,   any
          elementary or secondary private school licensed by
          the Department of Education or any elementary or
          secondary parochial school while acting in the scope
          of his or her employment or because of his or her
          employment relationship to the school;

          (6) attempts by physical menace to put any of the
          officers, agents, employees or other persons
          enumerated in subsection (c), while in the


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           performance of duty, in fear of imminent serious
           bodily injury;

           (7) uses tear or noxious gas as defined in section
           2708(b) (relating to use of tear or noxious gas in
           labor disputes) or uses an electric or electronic
           incapacitation device against any officer, employee
           or other person enumerated in subsection (c) while
           acting in the scope of his employment;

           (8) attempts to cause or intentionally, knowingly or
           recklessly causes bodily injury to a child less than six
           years of age, by a person 18 years of age or older;
           or

           (9) attempts to cause or intentionally, knowingly or
           recklessly causes serious bodily injury to a child less
           than 13 years of age, by a person 18 years of age or
           older.

        (b) Grading.—Aggravated assault under subsection
        (a)(1), (2) and (9) is a felony of the first degree.
        Aggravated assault under subsection (a)(3), (4), (5), (6),
        (7) and (8) is a felony of the second degree.

18 Pa.C.S.A. § 2702(a)-(b).    Serious bodily injury is defined as “[b]odily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” 18 Pa.C.S.A. § 2301.

     “Indictments must be read in a common sense manner and are not to

be construed in an overly technical sense.” Commonwealth v. Ohle, 503

Pa. 566, 588, 470 A.2d 61, 73 (1983). The purpose of an indictment is to

provide the accused with sufficient notice to prepare a defense, and to

insure that he will not be tried twice for the same act. Commonwealth v.

Conaway, 105 A.3d 755, 764 (Pa.Super. 2014), appeal denied, __ Pa. __,

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118 A.3d 1107 (2015). “[A] variance is not fatal unless it could mislead the

defendant at trial, involves an element of surprise prejudicial to the

defendant’s efforts to prepare his defense, precludes the defendant from

anticipating the prosecution’s proof or impairs a substantial right.”   Ohle,

supra at 589, 470 A.2d at 73. Importantly, the Commonwealth does not

need to prove that the crime occurred on the date alleged in the indictment,

except where the date is an essential issue in the case. Commonwealth v.

Young, 561 Pa. 34, 64, 748 A.2d 166, 182 (1999).

     Instantly, the description of the offense in Appellant’s delinquency

petition stated, “the offender did intentionally cause/attempt to cause

serious bodily injury to the complainant, A.C….” (See Delinquency Petition,

filed 11/4/14, at 1).   This language mirrors the language for aggravated

assault—F1 under Section 2702(a)(1), and put Appellant on notice that the

Commonwealth planned to adjudicate her of aggravated assault—F1, despite

the aggravated assault—F2 designation in the delinquency petition. See 18

Pa.C.S.A. § 2702(a)(1).      Additionally, the trial court’s opinion cited the

language of aggravated assault—F1 when it explained its decision to

adjudicate Appellant delinquent of aggravated assault—F1.        Under these

circumstances,   Appellant   knew    that   the   Commonwealth    sought   an

adjudication of delinquency for aggravated assault—F1 and that the trial

court did, in fact, adjudicate Appellant delinquent of aggravated assault—F1.

Thus, the record belies Appellant’s assertion that her adjudication of


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delinquency was for aggravated assault—F2.

        Further, the minor discrepancy over the date of the incident did not

prejudice Appellant’s preparation of her defense. The delinquency petition

stated the offense occurred on October 13, 2014, while the witnesses at the

adjudication hearing testified the offense occurred on October 14 or 15,

2014.     Nevertheless, Appellant presented the eyewitness testimony of her

older sister, C.G., who was present at the fight between Appellant and

Victim.     The presentation of this testimony demonstrated Appellant’s

awareness of the allegations against her and the incident from which those

allegations stemmed. Appellant’s actions also established that Appellant was

not surprised or misled at the adjudication hearing by the date variance.

See Ohle, supra. Additionally, Appellant does not allege that the date of

the offense is an essential issue in her case. See Young, supra. Thus, the

date discrepancy is not dispositive of Appellant’s sufficiency of the evidence

claim.

        In any event, the testimony at the adjudication hearing established

that Appellant challenged Victim to a fight and threatened to find Victim

alone if Victim refused to fight.   Additionally, Victim and Victim’s mother

both testified that Appellant repeatedly smashed Victim’s head into the

ground during the fight. Both parties also testified that Appellant’s actions

knocked Victim unconscious and Victim required hospitalization as a result.

Victim’s mother further stated that it took three adults to pull Appellant off


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Victim, even though Victim was unconscious.       The court determined these

circumstances established Appellant’s intent to inflict serious bodily injury to

Victim. Thus, sufficient evidence existed to support Appellant’s adjudication

of delinquency for aggravated assault—F1, and Appellant’s issues on appeal

merit no relief. See 18 Pa.C.S.A. § 2702(a)(1). Accordingly, we affirm.

       Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2016




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