                                  [J-10-2014]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT


IN THE INTEREST OF J.B.                        :   No. 34 WAP 2013
                                               :
                                               :
APPEAL OF: COMMONWEALTH OF                     :   Appeal from the Order of the Superior
PENNSYLVANIA                                   :   Court entered May 8, 2013 at No. 940
                                               :   WDA 2012, vacating the Order of the
                                               :   Court of Common Pleas of Lawrence
                                               :   County entered May 18, 2012 at No.
                                               :   113 of 2011, JUV and remanding.
                                               :
                                               :
                                               :   ARGUED: March 12, 2014


                      CONCURRING AND DISSENTING OPINION


MR. JUSTICE SAYLOR                                 DECIDED: DECEMBER 15, 2014


       I support the majority’s approach to the degree to which it declines to enforce an

outright waiver against the juvenile appellee; however, I differ with the decision to

remand for redundant weight-of-the-evidence review.

       In explaining the reasons underlying its approach, the majority envisions a

conceptual divide between closing arguments made to a judge as the fact-finder in non-

jury proceedings and a claim that the weight of the evidence favors acquittal/dismissal.

See Majority Opinion, slip op. at 36. First, the majority alludes to a temporal distinction.

See id. (“[I]t is a matter of plain logic that a claim that an adjudication of delinquency is

against the weight of the evidence presupposes that the juvenile court has already

made such a final adjudication.” (emphasis in original)). The majority also perceives a

substantive difference, in that closing arguments focus on whether the government has
established guilt beyond a reasonable doubt; whereas, a weight-of-the-evidence

challenge asks the fact-finder to reassess “to determine whether certain facts of record

are so weighty that they warrant the grant of a new adjudication hearing,” id., or,

analogously, a new trial in the adult criminal context.

       From my point of view, however, both the temporal and substantive distinctions

relied upon by the majority are illusory. First, while I realize that one can posit in an

abstract way that a challenge to a verdict or adjudication cannot logically precede the

verdict or adjudication, see Majority Opinion, slip op. at 36; Commonwealth v. Widmer,

547 Pa. 137, 141, 689 A.2d 211, 213 (1997) (Cappy, J., concurring), a similar temporal

observation could be made about every routine ruling pertaining to the admission of

evidence in a trial or adjudication. However, at least as a general rule -- and with good

reason -- redundant exceptions to objected-to rulings are no longer required.          Cf.

Commonwealth v. Pressley, 584 Pa. 624, 630, 887 A.2d 220, 224 (2005) (citing

Pa.R.Crim.P. 603).

       Substantively, criminal defense attorneys regularly argue to factfinders in closing

remarks that the evidence weighs heavily in favor of acquittal (or dismissal of juvenile

charges), obviously highlighting strengths of evidence favorable to the defense and

weaknesses of that presented by the government. See, e.g., In re J.B., 69 A.2d 268,

276 (Pa. Super. 2013) (“In the present case, . . . during closing argument J.B. presented

precisely the same arguments to the juvenile court that he now asserts on appeal in

support of his weight of the evidence claim.”). The defense is in no way confined to the

contention that the Commonwealth has failed to adduce sufficient proof (albeit this is,

obviously, also a strategy often pursued, for example, in cases in which the defense

presents no evidence of its own).




                             [J-10-2014][M.O. – Todd, J.] - 2
       For the above reasons, I see little rational impediment to permitting defendants or

juveniles to argue to a judge, during the course of non-jury proceedings, that the weight

of the evidence requires acquittal/dismissal and to perfect such claims for appellate

review by advancing them in statements of matters complained of on appeal per Rule of

Appellate Procedure 1925, as occurred in the present case.1 Along these lines, I agree

fully with the Superior Court’s stated rationale in its outright rejection of the waiver

assertion. See id. at 276-77. Accordingly, I would proceed to address the merits of the

Superior Court’s holding that the adjudication was against the weight of the evidence,

per the third issue upon which appeal was allowed. This, of course, would alleviate the

inefficiency and incongruity of the outcome directed by the majority, which is to remand

to the juvenile court to consider a claim which that court already has resolved and which

also has been fully vetted already in the intermediate court on direct appellate review.




1
  Because bench and jury trials in adult criminal proceedings are materially different in
that the trial judge serves as fact-finder in the former but not the latter context, so far as
I can tell, the most salient justification for equating weight-of-the-evidence challenges as
between bench and jury trials in adult criminal proceedings (insofar as post-verdict
proceedings are required in both) is for the sake of consistency.


                              [J-10-2014][M.O. – Todd, J.] - 3
