J-A16034-19

                             2019 PA Super 233

 IN THE INTEREST OF N.A.P., A           :   IN THE SUPERIOR COURT OF
 MINOR                                  :        PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: N.A.P.                      :
                                        :
                                        :
                                        :
                                        :   No. 2062 MDA 2018

      Appeal from the Dispositional Order Entered September 1, 2018
   In the Court of Common Pleas of Franklin County Criminal Division at
                     No(s): CP-28-JV-0000038-2017


BEFORE:    LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                           FILED JULY 31, 2019

     Appellant N.A.P., a minor, appeals from the dispositional order entered

by the Court of Common Pleas of Franklin County on September 1, 2018.

Appellant argues that the juvenile court erred when it refused to sequester a

witness and denied his challenge to the weight of the evidence. After careful

review, we affirm.

     Appellant was adjudicated delinquent based on allegations that he raped

and strangled his girlfriend, N.M., when she was fifteen years old.   At the

adjudication hearing, the following factual history was developed:      N.M.

claimed that on January 17, 2017, Appellant and N.M. were arguing in the

dining room of Appellant’s home about Appellant’s ex-girlfriend, C.V.

Appellant suggested they continue their argument in his downstairs bedroom

so that his grandfather would not hear their conversation.




____________________________________
* Former Justice specially assigned to the Superior Court.
J-A16034-19



      N.M. testified that initially she did not expect Appellant to hurt her as

his demeanor was not “mean.” Notes of Testimony (N.T.), 6/23/17, at 19.

However, N.M. claimed that after she refused to have sex with Appellant,

Appellant grabbed her by the neck and “slammed [her] down” on the bed. Id.

at 20-21. As Appellant’s hand was high on her neck near her jawbone, N.M.

asserted that she had difficulty breathing, could not speak, and could not

escape. Id. at 21-23, 36-37.

      N.M. explained in detail that Appellant used his right hand to pull her

pants down and subsequently used his right hand to hold her right hand down.

Id. at 22. He then placed his right hand on her neck and pulled her pants

down with his left hand. Id. N.M. asserted that Appellant forced his penis

into her vagina while still holding her neck, only stopping when they heard

someone or something downstairs. Id. at 22-24.

      Thereafter, N.M. ran upstairs and texted her cousin to come pick her up,

indicating that it was urgent as she needed to leave. Id. at 24. Appellant did

not follow N.M. upstairs. Id. N.M. waited thirty minutes for her cousin to pick

her up, but did not tell her cousin what happened because she was afraid and

embarrassed. Id. at 25. N.M. later noticed she had bruising on her arm and

buttocks, recalled having breathing issues that caused her to wheeze, and felt

discomfort in her neck for the next few days. Id. at 26-27. N.M. also testified

that the attack affected her emotionally, as she experienced depression and

problems sleeping and eating. Id. at 27-28.




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      N.M. did not speak with Appellant or initiate any contact with him after

the attack. When she saw Appellant in the school hallway, he called her a

“rat” and “ugly” in front of his friends. N.T. at 28-29. N.M. did not tell anyone

about the attack until February 2017 when she confided in her best friend, her

dad, and then her mom.        Id. at 29-32.     N.M. reported the attack and

underwent a medical exam and interview at the Over the Rainbow Children’s

Advocacy Center on February 13, 2017.

      N.M. admitted that she did not have a good relationship with Appellant’s

ex-girlfriend, C.V., because she continued to contact Appellant while he was

dating N.M., started “drama and rumors,” and attempted to set up N.M. with

another male in order to break Appellant and N.M.’s relationship. Id. at 35,

61-62, 67-68. In addition, N.M. claimed that she was bullied after the attack

and had to transfer schools. Id. at 14.

      The prosecution presented the expert testimony of Jennifer McNew, a

forensic nurse consultant, who has performed over 600 examinations in

connection with sexual assault allegations. Id. at 77-78. When conducting

N.M.’s examination on February 13, 2017, McNew took photos of bruises on

N.M.’s left arm and left buttocks. McNew indicated that N.M.’s complaints of

neck pain, difficulty breathing, lightheadedness, coughing, and headache were

consistent with her claim that pressure had been applied to her neck. Id. at

88. McNew reported that N.M. did not exhibit any signs of genital injury, but

explained that the absence of a genital injury does not invalidate allegations

of sexual assault. Id. at 88-92. McNew also acknowledged that N.M. tested

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positive for chlamydia and Appellant tested negative for chlamydia, but cited

studies proposing that chlamydia in males may resolve itself without any

treatment. Id. at 88-89, 99-101.

      N.M.’s mother, T.D., testified that that her daughter was shaken and

devastated when she revealed that she had been raped and strangled. Id. at

119-20. T.D. initially represented to the reporting officer, Trooper Courtney

Pattillo, that based on N.M.’s statements, that the attack occurred sometime

between January 16-18, 2017. Id. at 112. T.D. asserted that N.M. never

alleged that the assault occurred on January 20. Id.

      Appellant’s mother, S.J., claimed Trooper Pattillo contacted her on

February 13, 2017 with the allegations N.M. made against Appellant. Id. at

124. When Trooper Pattillo asserted that the alleged date of the attack was

January 20, 2017, S.J claimed the attack did not happen as Appellant was out

to dinner with her for her mother’s birthday. Id. at 125-26. S.J. also claimed

she picked Appellant up at N.M.’s home on January 19.          Id. at 129-30.

However, she never told this to Trooper Pattillo. Id. at 133-36.

      Trooper Pattillo was unable to be present for the hearing in this case.

Neither party sought to continue the adjudicatory hearing to a later court date

in which Trooper Pattillo would be available to appear in this case.

      Appellant’s grandfather, C.J., testified that he supervises Appellant

when Appellant’s mother is on work trips. Id. at 138-39. Although Appellant’s

room is in the basement of the home, C.J. claimed that he has never seen

Appellant’s door closed and can hear what is going on the basement from

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upstairs. Id. at 140-41. While C.J. indicated that Appellant’s friends were

required to leave the home by 8:00 p.m., C.J. was not aware of any rule with

respect to Appellant having girls in his room. Id. at 140.

      When specifically asked about Appellant’s relationship with N.M., C.J.

indicated that he never saw N.M. come up from the basement and act unusual,

injured, or upset. Id. at 143. Further, C.J. identified his own text messages

in which he asked Appellant’s mother if he could drop Appellant off at N.M.’s

grandmother’s home on January 18, 2017. Id. at 143-45. C.J. remembered

driving Appellant there and seeing him enter the home, but admitted he did

not see N.M. on that date. Id. at 145-46.

      Appellant’s ex-girlfriend, C.V., testified that she dated Appellant from

April 2016 to December 2016. Id. at 150-51. C.V. knew that Appellant and

N.M. dated from December 27 until the end of January. Id. at 151. Appellant

and C.V. got back together on February 2, 2017. Id. at 151-52. C.V. admitted

that she made N.M. angry when she forwarded Appellant a text message

thread between N.M. and another male, M.M. Id. at 153-56.

      Appellant testified on his own behalf and claimed he did not remember

what happened on January 17, 2017. Id. at 161. He indicated that he had

consensual sex with N.M. three or four times during their relationship, but

could not recall the exact dates.    Id. at 160.    Appellant testified to his

household rule that his bedroom door had to be open if he was alone with

N.M. and his grandfather would sometimes check in with them unexpectedly.

Id. at 162-63.   However, Appellant maintained that he and N.M. had sex in

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his bedroom several times and were never caught. Id. Appellant also claimed

his mother set a strict rule that friends had to leave N.M.’s home by 8 p.m. on

a school night. Id. at 162.

      Appellant indicated that he and N.M. broke up in late January over

Snapchat messages.        Id. at 172-73.     Although it was a “bad breakup,”

Appellant could not recall what led to the breakup.         N.T. at 171-73.     He

indicated the breakup occurred before N.M. came forward with the rape

allegations and admitted he and N.M. would fight often over his ex-girlfriend,

C.V. Id. at 163. Appellant admitted to calling N.M. “chunky,” “fat,” and a

“rat” in front of his friends to make N.M. feel bad after their relationship ended.

He admitted to targeting N.M.’s insecurities about her own body specifically to

make fun of her. N.T. at 165-66, 169. Appellant admitted that N.M. was

bullied after they broke up.     Id. Appellant asserted that he did not have

chlamydia and tested negative on February 16, 2017. Id. at 161.

      Appellant presented a defense expert, Dr. Lawrence Guzzardi, an

emergency room physician, who testified that it would be highly unusual for

significant bruising to persist after fourteen days. Id. at 191, 193. He further

indicated that bruising persisting more than twenty-eight days is highly

unusual, but could not say that it would be impossible that bruising would last

that long. Id. at 193-94.     Dr. Guzzardi also questioned N.M.’s testimony as

she claimed Appellant grabbed her right arm, but her bruises appeared on her

left arm.   Id. at 196.    He was “highly surprised” that N.M. did not report




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J-A16034-19



bruising on her neck based on her description of the assault. N.T. at 199. He

also agreed that a lack of genital bruising was not conclusive. Id. at 199-200.

      Dr. Guzzardi testified that N.M.’s testimony did not suggest that she

contracted chlamydia from Appellant as this disease is transmitted by

secretion. Id. at 201-202. Dr. Guzzardi stated that he was not familiar with

cases of chlamydia that resolve without treatment. Id. Dr. Guzzardi also

questioned N.M.’s account that she was strangled, as he indicated that

hoarseness and difficulty breathing would occur if force was exerted lower on

the neck than where N.M. reported. Id. at 207-208. Dr. Guzzardi indicated

that symptoms consistent with N.M.’s account of the assault would include

faintness, passing out, and pain; he felt a complaint of wheezing did not make

sense.   Id.   Thus, Dr. Guzzardi opined that the physical evidence is not

consistent with N.M.’s allegations. Id. at 204-205.

      The prosecution presented Jennifer McNew as a rebuttal witness.

McNew confirmed that N.M. testified consistently with her allegations given in

her interview, in which she indicated that Appellant had grabbed her left arm,

not her right arm. Id. at 218.

      At the conclusion of the hearing, the juvenile court adjudicated Appellant

delinquent of rape and strangulation and found Appellant in need of treatment,

supervision, and rehabilitation. Appellant was placed on probation supervision

until further court order and was placed at Adelphi Village, Loyalhanna Home.

      Appellant filed a timely appeal and complied with the juvenile court’s

direction to submit a Concise Statement of Errors Complained of on Appeal

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pursuant to Pa.R.A.P. 1925(b). In his 1925(b) statement, Appellant filed a

“motion for leave to file post-disposition motion nunc pro tunc,” raising a

challenge to the weight of the evidence for the first time. This Court remanded

this case to the juvenile court to provide Appellant with the opportunity to file

a post-dispositional motion nunc pro tunc. See In re J.B., 630 Pa. 124, 106

A.3d 76 (2014) (remanding the matter to the juvenile court to allow the

juvenile to raise a weight claim for the first time in a post-dispositional motion

nunc pro tunc).

      Following remand, Appellant filed a post-dispositional motion seeking a

new finding of fact hearing. After allowing the parties to file briefs on this

issue, the lower court entered an order and opinion on December 4, 2018,

denying Appellant’s motion. This timely appeal followed.

      Appellant raises the following issues for our review:

      1. Whether, after offers of proof that the testimony of [T.D.] could
         be molded by being present in the courtroom while [N.M]
         testified, the trial court abused its discretion by denying
         [Appellant’s] request to have [T.D.] sequestered.

      2. Whether the weight of the evidence at trial was so greatly
         against the Commonwealth and in favor of [Appellant] as to
         warrant a new trial.

Appellant’s Brief, at 26.

      We first review Appellant’s claim that the juvenile court erred in denying

his request to sequester T.D. while her daughter N.M. testified. In reviewing

a trial court’s decision on a request to sequester a witness, we are guided by

the following principles:


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J-A16034-19


       The purpose of sequestration is to prevent a witness from molding
       his testimony with that presented by other witnesses. Because of
       the practical considerations that attend trials, the decision to
       sequester witnesses is left to the discretion of the trial judge and
       will be reversed only for an abuse of discretion.

Commonwealth v. Counterman, 553 Pa. 370, 399–400, 719 A.2d 284, 299

(1998) (citations omitted).

       [T]o establish the court's ruling as a basis for a new trial the
       appellant must demonstrate that the trial court failed to apply the
       law correctly or acted for reasons of bias or other factors unrelated
       to the merits of the case. Our scope of review for this analysis is
       plenary. See [Cooper v. Delaware Valley Med. Ctr., 539 Pa.
       620, 654 A.2d 547, 553 (1995)].

       Requests for sequestration “should be as specific as possible and
       supported by reasons aimed at the interests of justice.”
       Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026, 1031
       (1978). A general request is insufficient. See id. A court does
       not err simply because it fails to grant an appellant relief for which
       he does not ask. See id.

Commonwealth v. Atwell, 785 A.2d 123, 125–26 (Pa.Super. 2001).

       When Appellant’s counsel asked for T.D. to be sequestered, he

indicated that T.D. was a potential rebuttal witness, but acknowledged that

T.D. had not been subpoenaed at that point.1 The prosecution objected to the

sequestration request, arguing that, as the defense had never indicated it

planned to call T.D. as a witness, sequestration would take N.M. by surprise
____________________________________________


1 The juvenile court pointed out that the finding of fact hearing on the
delinquency petition would be open to the public due to the seriousness of the
accusations made against Appellant.          See 42 Pa.C.S.A. § 6336(e)(1)
(requiring proceedings open to the general public in cases where the
delinquency petition alleges that the “child was 14 years of age or older at the
time of the alleged conduct and the alleged conduct would be considered a
felony if committed by an adult”).


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J-A16034-19



as she was under the impression that her mother would be in the courtroom

during her testimony. As T.D. would be the main source of support for N.M.

while she testified to the details surrounding her rape allegations, the

prosecution asserted that the sequestration of T.D. would make it difficult for

N.M. to testify.   At that time, the juvenile court ruled that T.D. would be

allowed to stay in the courtroom.

      Appellant’s counsel then asked if the lower court’s ruling would be

different if he instructed his assistant to obtain a subpoena for T.D. from the

clerk of courts across the hall, but indicated that he did not want to be viewed

as “petty.” N.T. at 7. At that point, the juvenile court viewed counsel’s actions

as “gamesmanship” and clarified that T.D. would be permitted to remain in

the courtroom for N.M.’s testimony and then would be required to leave the

courtroom until summoned for her own testimony. Id.

      Appellant argued that the juvenile court abused its discretion in denying

his sequestration request due to the fact that T.D. could mold her testimony

after hearing her daughter, N.M. testify. Specifically, Appellant pointed to his

theory that there was inconsistency in the victim’s allegations of the date when

the attack occurred. Appellant noted that after Trooper Pattillo had initially

told Appellant’s mother that the attack had occurred on January 20, 2017,

Appellant’s mother confirmed that Appellant had an alibi as he was with her

at a restaurant that evening.       Appellant alleges that N.M. subsequently

changed the date of her allegations to suit her accusations.




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      While the Commonwealth asserted that the discrepancy in the

allegations of the date of the attack would have been resolved had Trooper

Pattillo been available to testify at the hearing, it assured the court that it was

equally frustrated with his absence, but indicated that officer’s appearance

was beyond the prosecution’s control as it had subpoenaed the officer, who

was in Canada on that date.

      In reviewing the record in this case, we find Appellant failed to show

that the denial of his request to sequester T.D. “resulted in prejudice or

contravened the interest of justice.” Counterman, supra. As noted above,

at the time Appellant sought to sequester T.D., the defense had not named

T.D. as a witness. The defense threatened to subpoena T.D. only after the

trial court refused to remove her from the courtroom during N.M.’s testimony.

      While   the   defense    argued    N.M.’s   testimony    contained    crucial

inconsistencies with respect to the date of the attack, counsel did not attempt

to elicit any evidence from N.M. to support this claim. On direct examination,

N.M. confirmed that the rape and strangulation occurred on January 17, 2017.

On cross-examination, defense counsel did not question N.M. at all with

respect to the date of the attack or confront N.M. with his theory that N.M.

initially told police that the attack occurred on January 20, 2017, but changed

her allegations after Appellant’s mother gave him an alibi for that date.

      In fact, defense counsel actually corroborated N.M.’s testimony as to the

date of the attack by admitting screenshots of text messages N.M. sent to her

cousin on January 17, 2017, asking urgently for a ride home from Appellant’s

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residence.    As a result, Appellant has not shown the trial court abused its

discretion in denying his sequestration request.

      Appellant also argues that the juvenile court erred in refusing to grant

Appellant a new adjudicatory hearing based on his weight of the evidence

claim. Our standard of review is as follows:

      “A weight of the evidence claim concedes that the evidence is
      sufficient to sustain the verdict, but seeks a new trial on the
      grounds that the evidence was so one-sided or so weighted in
      favor of acquittal that a guilty verdict shocks one's sense of
      justice.” In re J.B., 630 Pa. 124, 106 A.3d 76, 95 (2014) (citation
      omitted). Thus, we may reverse the juvenile court's adjudication
      of delinquency only if it is so contrary to the evidence as to shock
      one's sense of justice. In re J.M., 89 A.3d 688, 692 (Pa.Super.
      2014), appeal denied, 628 Pa. 623, 102 A.3d 986 (2014) (citation
      omitted). Moreover, where the juvenile court has ruled on the
      weight claim below, an appellate court's role is not to consider the
      underlying question of whether the verdict is against the weight
      of the evidence.       Id.    Rather, this Court is limited to a
      consideration of whether the juvenile court palpably abused its
      discretion in ruling on the weight claim. Id. Hence, a juvenile
      court's denial of a weight claim is the least assailable of its rulings,
      as conflicts in the evidence and contradictions in the testimony of
      any witnesses are for the fact finder to resolve. Id.

In re A.G.C., 142 A.3d 102, 109 (Pa.Super. 2016).

      Appellant specifically argues that 1) N.M. had a motive to fabricate the

rape allegations based on her relationship history with Appellant and

Appellant’s    self-admitted “heinous” bullying tactics, 2) Appellant had no

motive to rape N.M., 3) the physical evidence does not support N.M.’s account,

4) Appellant’s testimony was “unimpeached,” 5) N.M.’s text messages after

on the night of the incident do not suggest that she was attacked, and 6) the

reported date of the incident “suspiciously changed” based on Appellant’s alibi.


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      However, the juvenile court emphasized that it found N.M. had testified

credibly and set forth its findings as follows:

             At the finding of fact hearing, N.M. provided a clear and
      detailed step-by-step account of what occurred on January 17,
      2017.     She additionally offered details of her physical and
      emotional state following January 17, 2017. After disclosing the
      incident to her friends and family in February 2017, N.M.
      underwent a recorded interview, a medical examination, and a
      police investigation conducted by Trooper Pat[t]illo. Finally, N.M.
      stood before the Court at the finding of fact hearing to offer her
      recollection of the incident.

            In contrast to N.M.’s testimony, the juvenile could not recall
      for the Court what happened on January 17, 2017, and thus did
      not satisfactorily refute N.M.’s contentions. The juvenile could not
      remember when or why his relationship with N.M. ended.
      Moreover, his own testimony did not support his grandfather’s and
      mother’s assertions that he was with N.M. on January 18 and 19
      of 2017, because the juvenile could not remember what he did on
      those dates. Instead of providing corroboration, the juvenile
      merely tendered a Snapchat conversation – undated – that
      purported to show an angry conversation with N.M. which the
      juvenile estimated occurred after the break up. Yet again, the
      juvenile was unable to approximate a date for the Court to
      consider.

            Regarding the juvenile’s arguments outlined in his
      supporting brief, we find that the facts the juvenile points out are
      not “so weighty that they warrant the grant of a new adjudication
      hearing.” The juvenile’s assertions of N.M.’s alleged motive
      remain unpersuasive. While the juvenile may describe his conduct
      as “heinous,” this Court does not find that the juvenile’s treatment
      of N.M. rises to the level where a high school student would be
      driven to fabricate criminal charges against a bully. Further, we
      again observe that the many references to C.V.’s involvement do
      not support a motive for N.M. to manufacture allegations against
      the juvenile. With respect to the juvenile’s own lack of motive,
      the absence of a proven motive for offensive conduct is not
      demonstrable evidence that should have been given greater
      weight.



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           Likewise, the juvenile’s contention referring to the lack of
     physical evidence is unpersuasive.        As Ms. McNew and the
     juvenile’s expert both testified, the period between the assault on
     January 17, 2017, and N.M.’s medical examination on February
     13, 2017, was sufficient for physical evidence of the assault to
     fade and disappear. As this Court stated upon finding the juvenile
     involved, our determination was not based on the bruises noted
     in the medical examination, but rather on N.M.’s credible
     description of the incident.

           In response to the juvenile’s claim that his own testimony
     was “unimpeached,” we note that his testimony provided little
     substance to impeach.

           Finally, the juvenile’s assertion concerning the reporting of
     the assault do not sway our decision. The fact that N.M. did not
     contact her cousin with the degree of urgency that the juvenile
     deems fitting under the circumstances is not a fact that merits
     greater weight. While the juvenile appears to contend that the
     texts of a sexual assault victim would be more forthcoming about
     what had happened, the fact remains that N.M.’s messages do
     convey a sense of urgency and comport with N.M.’s testimony that
     she was not ready to disclose the assault. Furthermore, while the
     juvenile points to the change in dates as a suspicious circumstance
     meant to count the juvenile’s alibi, the evidence does not show
     that either N.M. or [N.M.’s mother] were aware of [Appellant’s
     mother’s] statement to Trooper Pat[t]illo that the juvenile was
     with [her] on January 20, 2017.

            Notwithstanding the juvenile’s arguments, this Court found
     – and continues to find – N.M. to be a credible witness. We found
     her testimony believable despite the juvenile’s many attempts to
     discredit her. Accordingly, after careful review, we decline to
     reweigh the evidence underlying our initial decision at the finding
     of fact hearing.

Trial Court Opinion, 12/4/18, at 15-18.

     Appellant’s weight of the evidence claim simply asks this Court to re-

weigh the evidence and substitute our judgment for the juvenile court's

credibility determinations. As we noted above, conflicts in the evidence and



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contradictions in the testimony of any witnesses are for the fact finder to

resolve. In re A.G.C., supra. Based on the record in this case, we cannot

find that the adjudication of delinquency is so contrary to the evidence as to

shock one's sense of justice. Accordingly, we conclude that the juvenile court

properly exercised its discretion in ruling on the weight claim.

      For the foregoing reasons, we affirm.

      Dispositional order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2019




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