J-S06005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.J., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.J., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 1692 EDA 2019

                  Appeal from the Order Entered June 6, 2019
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-JV-0000203-2019


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 09, 2020

        A.J. appeals from the trial court’s dispositional order1 following his

adjudication of delinquency for two counts each of theft by unlawful taking 2

and receiving stolen property3 and one count each of simple assault4 and the

summary offense of harassment.5 After careful review we affirm.

        On April 1, 2019, G.H., the victim, was at his home located in Perkasie,

Pennsylvania. Sometime in the early afternoon he invited his friend, E.I., over

to his house. Without the victim’s knowledge, E.I. brought A.J. with him. G.H.

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1 The order encompassed both the instant charges and A.J.’s violation of a
previously-imposed term of probation.

2   18 Pa.C.S. § 3921(a).

3   18 Pa.C.S. § 3925(a).

4   18 Pa.C.S. § 2701(a)(1).

5   18 Pa.C.S. § 2709(a)(1).
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was not comfortable with A.J. being in his home and unsuccessfully attempted

to close the door before he entered the house.           The three boys watched

television for ten to fifteen minutes in the living room, after which A.J. left the

room and went into the victim’s mother’s bedroom.            In her bedroom, A.J.

removed a pink iPhone from the victim’s mother’s dresser and placed it in his

pocket. A.J. then entered the victim’s bedroom and removed a painting from

the wall. Feeling intimidated by A.J., the victim told A.J. that he could have

the painting. According, to E.I., the victim appeared “scared” of A.J. at this

time.

        Before leaving the victim’s house, A.J. lit a cigarette and flicked it in the

living room before he allegedly flushed it down the toilet. E.I. and the victim

testified that A.J. also forcibly grabbed the victim’s arm and held a lit cigarette

on his wrist for approximately five seconds. A.J. then asked the victim to

retrieve a pair of scissors from the kitchen; A.J. held the victim down and cut

his hair against his will, telling him that he was “going to make [him] look less

gay.” As A.J. left the house with the painting and pink cell phone, he told the

victim, “don’t call the police or I’ll have killers at your door.”

        Shortly after 2:00 p.m. on the same day, Officer Scott Fields was called

to the scene. There, Officer Fields spoke with the victim’s mother, who told

him that her son had been assaulted with a lit cigarette and that his hair had

been cut against his will. Upon entering the victim’s residence, Officer Fields

observed a burn mark on the inside of the victim’s wrist, located a cigarette

with a “smushed” end on the bookshelf in the victim’s room, noted that the


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victim’s hair appeared to have been cut in a random manner, and saw human

hair on the rug in the living room. E.I. gave the following statement to Officer

Fields: “Me [sic] and A.J.[,] we were in [the victim’s] house hanging out and

a couple things were said back and forth[,] so I left not wanting to be a part

of an[y]thing going on.”        Exhibit D-2 (entered at adjudicatory hearing on

4/18/19). The victim also gave a statement later in the day in which he stated

that A.J. “went through [his] mom’s stuff[,] her drawers[,] and proceeded to

steal an [i]Phone and a painting in [his] room. A.[J.] threatened to beat [him]

up . . . [and] burned [him] with a cigarette on [his] wrist and before [he] left

[A.J.] cut [the victim’s] hair with a pair of scissors and threatened to have

people kill [him] if [he] ratted to the police.”       Exhibit D-1 (entered at

adjudicatory hearing on 4/18/19).

       On April 18, 2019, the court held an adjudicatory hearing where the

victim, E.I.,6 Officer Fields, and A.J. testified.7   At the conclusion of the

hearing, the court adjudicated A.J. delinquent on the above-stated charges

and detained A.J. for twenty days pending disposition. On May 6, 2019, the

court held a dispositional hearing, after which the court placed A.J. on

indefinite probation with electronic monitoring, ordered him to pay restitution

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6 E.I. first refused to testify, stating that he feared for his and his family’s
safety if he were to testify against A.J. The court instructed E.I. to answer
the questions truthfully, took a 15-minute recess and then continued
questioning E.I.

7Pictures of the victim’s wrist burn, his hair, the cigarette with the “smushed”
end, and pieces of hair on the living room carpet were admitted at the
adjudicatory hearing as exhibits.
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to the victim in the amount of $170.00, prohibited him from having contact

with the victim, and ordered him to participate in the Community Service

Foundations Restorative Reporting Center Program. On May 16, 2019, A.J.

filed timely post-dispositional motions seeking a new adjudicatory hearing

based on a weight of the evidence claim. See Pa.R.J.P. 620(a)-(b). Following

a hearing on June 6, 2019, the court orally denied the motions.8

       A.J. filed a notice of appeal on June 12, 2019, and a timely court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. A.J.

raises the following issues for our review:

       A. Was A[.J.’s] adjudication of delinquency for simple assault,
       theft by unlawful taking, receiving stolen property and
       harassment, a summary offense, against the weight of the
       evidence[9] for the following reasons:

          i. Commonwealth witness G.H.’s testimony contained
          consequential inconsistencies and omissions compared to
          the statements he gave to police on the day of the alleged
          incident;

          ii. Commonwealth witness G.H.’s testimony regarding the
          location of the cigarette used by A[.J.] to burn his arm
          contradicted Officer Scott Field’s testimony regarding the


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8 On June 24, 2019, our Court issued a rule to show cause why this appeal
should not be quashed due to the fact that the trial court had not issued a
written order denying A.J.’s post-dispositional motions. On June 25, 2019,
the trial court entered a written order denying A.J.’s motion. Thus, we find
that the appeal is properly before us. See Pa.R.A.P. 905(a)(5).

9 A.J. has properly preserved his weight of the evidence claim, for purposes
of appeal, by raising it in his post-dispositional motions. See Pa.R.J.P.
415(A)(3) (claim that ruling on offense or adjudication of delinquency against
weight of evidence shall be raised with juvenile court judge by oral motion,
written motion, or post-dispositional motion pursuant to Rule 620(A)(1)).
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          location where        he    found    the   cigarette   during   his
          investigation;

          iii. Commonwealth witness E.I.’s testimony contained
          consequential inconsistencies and omissions compared to
          the statements he gave to police on the day of the alleged
          incident;

          iv. Commonwealth witness E.I. contradicted his own
          testimony during the hearing, [where] E.I. first testified that
          he had no recollection of what happened during the incident,
          however, he later changed his testimony after the
          Commonwealth was allowed a recess during his direct-
          examination in order to influence his testimony by
          threatening E.I. with a crime if he did not testify consistently
          with the Commonwealth’s version of events; and

          v. Commonwealth witnesses E.I. and G.H. testified
          inconsistently regarding the time of day the incident
          occurred, and the duration of time that elapsed from when
          A[.J.] entered G.H.’s residence to the time he left the
          residence.

       B. Did the Superior Court abuse its discretion in refusing to
       remand this matter to the trial court for a new delinquency hearing
       where the Commonwealth presented the defense with after-
       discovered DNA evidence which proved that A[.J.] was innocent
       of the charges?

Appellant’s Brief, at 4-5.

       A.J.’s first claim challenges the weight of the evidence to support his

adjudications. Specifically, he contends that because the Commonwealth’s

juvenile witnesses’ testimony was “replete with inconsistencies”10 and an adult


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10 In his post-dispositional motion hearing, A.J. argued that the juvenile
witnesses’ testimony with regard to the timeframe when the event in question
occurred, whether A.J. took the victim’s cell phone forcefully out of his hand
during the event, and the location of the cigarette that A.J. used to burn the
victim demonstrated inconsistencies and contradictions between their police
statements and in-court testimony. See N.T. Post-Dispositional Motion
Hearing, 6/6/19, at 3-23.
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witness improperly bolstered the complainant’s testimony, he is entitled to a

new adjudicatory hearing.

      In In re J.B., 106 A.3d 76 (Pa. 2014), our Supreme Court set forth the

proper standard and scope of review for weight of the evidence claims in

juvenile adjudications as follows:

      [T]he general rule in this Commonwealth is that a weight of the
      evidence claim is primarily addressed to the discretion of the judge
      who actually presided at trial. In reviewing a trial court’s
      adjudication of a weight of the evidence claim, “an appellate court
      determines whether the trial court abused its discretion based
      upon review of the record; its role is not to consider the underlying
      question in the first instance. Thus, a weight of the evidence claim
      must be presented to the trial court so that it may address it in
      the first instance.”

      Once a weight of the evidence claim has been presented to the
      trial court, it then reviews the evidence adduced at trial and
      determines whether “notwithstanding 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.” A trial
      court should award a new trial if the verdict of the fact finder “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.” Stated another way, “[a] weight
      of the evidence claim concedes that the evidence is sufficient to
      sustain the verdict, but seeks a new trial on the ground that the
      evidence was so one-sided or so weighted in favor of acquittal that
      a guilty verdict shocks one’s sense of justice.” These principles
      have been deemed equally applicable to the adjudication of weight
      of the evidence challenges brought in juvenile court proceedings.

Id. at 95 (citations and quotations omitted).

      While   there    undoubtedly     were     inconsistencies   between     the

Commonwealth’s key juvenile witnesses’ testimony before and during trial,

the victim’s and E.I.’s testimony at trial was internally consistent regarding

the injuries the victim sustained at the hands of A.J. on the day in question.

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In In the Interest of J.M., 89 A.3d 688 (Pa. Super 2014), our Court

reiterated the well-established principle that “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.” Id. at 692 (citing In re C.S., 63 A.3d 351, 357 (Pa. Super. 2013)).

After a comprehensive review of the record, including the notes of testimony

from the adjudicatory, dispositional and post-dispositional hearings, we

cannot conclude that the court palpably abused its discretion by rejecting

A.J.’s weight of the evidence claim where the evidence was not so one-sided

or so weighted in favor of acquittal. The court properly resolved any conflicts

in the evidence and contradictions in witness testimony. Accordingly, we find

no merit to this issue.

      In his final claim on appeal, A.J. contends that we must remand the

matter for a new adjudicatory hearing so that the trial court can consider after-

discovered DNA test results obtained from the cigarette with a “smushed” end

found in the victim’s bedroom. On September 5, 2018, A.J. filed a motion for

remand based on after-discovered evidence that became available after the

instant appeal had been filed.      Specifically, DNA analysis of the cigarette

indicated that the DNA did not match that of A.J. A.J. argues that remand is

appropriate because the Commonwealth “used this cigarette to vigorously

argue [A.J.’s] guilt and . . . this physical evidence was so central to the court’s

reasoning and findings of guilt.” Appellant’s Brief, at 9.




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      In Commonwealth v. Pagan, 950 A.2d 270, (Pa. 2008), the

Pennsylvania Supreme Court set forth the factors used to analyze an after-

discovered evidence claim:

      To obtain relief based on after-discovered evidence, appellant
      must demonstrate that the evidence: (1) could not have been
      obtained prior to the conclusion of the trial by the exercise of
      reasonable diligence; (2) is not merely corroborative or
      cumulative; (3) will not be used solely to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.

Id. at 292. Instantly, the Commonwealth concedes that the DNA evidence

could not have been discovered prior to the end of the adjudication. However,

we conclude that a different determination would not likely result if a new

adjudicatory hearing were granted based on this after-discovered evidence.

Here, the subject cigarette is not necessarily the same cigarette that was used

to burn the victim. A.J. testified that he flushed down the toilet the cigarette

that he smoked in the victim’s house on the day of the incident. Therefore, it

was just as likely that the cigarette A.J. used to burn the victim’s wrist was

the one he flushed down the toilet and not the one found in the bedroom.

Thus, evidence regarding the lack of A.J.’s DNA on the “smushed-end”

cigarette would not likely exonerate him. We find this claim, too, lacks merit.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/20




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