J-S69026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: D.J.B., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.J.B., A MINOR                 :
                                               :
                                               :
                                               :
                                               :   No. 580 WDA 2017

               Appeal from the Order Dated December 8, 2016
     In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-0000082-2015


BEFORE:      BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY RANSOM, J.:                               FILED JANUARY 3, 2018

       Appellant, D.J.B., a minor, appeals from the dispositional order dated

December 8, 2016, adjudicating him delinquent for acts constituting indecent

exposure, simple assault, false imprisonment, and indecent assault.1          We

remand with instructions.

       The relevant facts and procedural history are as follows. In November

2015, the Commonwealth filed written allegations against Appellant, a minor

born in October 1999.        On February 18, 2016, the Commonwealth filed a

petition alleging delinquency arising out of an incident in Appellant’s bedroom


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1 See 18 Pa.C.S. §§ 3127(a), 2701(a)(3), 2903(a), and 3126(a)(7), two
counts of each, respectively.
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* Former Justice specially assigned to the Superior Court.
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in summer 2015. The charges arose out of the allegations of two younger

boys, C.C. and G.W. Notes of Testimony (N.T.), 5/31/2016, at 13, 49. C.C.

has a date of birth in December 2005. Id. G.W. has a date of birth in August

2003. Id. at 45.

      At the contested adjudicatory hearing, C.C. testified that Appellant

made him and G.W. play a “game” in a closet in Appellant’s room. Id. at 18-

19.   C.C. testified that he was locked into the closet with Appellant and

Appellant touched C.C.’s genitals. Id. at 20- 21. G.W. testified that they were

playing a game called “house.”      Id. at 54.   G.W. stated that the incident

occurred on the bed in Appellant’s room. Id. at 57, 58. G.W. testified that

the doorknobs to Appellant’s room were removed so that a tool was needed

to open the door.    Id. at 55.    While locked in the bedroom with C.C. and

Appellant, G.W. testified that Appellant touched C.C.’s genitals underneath

C.C.’s clothing.   Id. at 56-57.   G.W. testified that Appellant then touched

G.W.’s genitals. Id. at 57-58.

      On December 8, 2016, the juvenile court found Appellant guilty of all

charges and adjudicated him delinquent. Appellant did not file either post-

dispositional motions or a timely notice of appeal.

      On March 30, 2017, Appellant filed a petition to appeal nunc pro tunc,

wherein counsel stated that he filed Appellant’s notice of appeal under an

incorrect docket number in error. Thereafter, the juvenile court reinstated

Appellant’s direct appeal rights, and Appellant timely filed a notice of appeal.


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      On May 3, 2017, the juvenile court directed Appellant to file a concise

statement pursuant to Pa.R.A.P. 1925(b) “no later than twenty-one (21) days

after the entry of this [o]rder.” Order, 5/3/2017. Further, the court advised

Appellant that “[a]ny issue not properly included in the [s]tatement timely

filed and served pursuant to Pa.R.A.P. 1925(b) shall be deemed waived.” Id.

      On June 13, 2017, Appellant untimely filed a 1925(b) statement. The

juvenile court issued a responsive opinion.

      On appeal, Appellant raises one issue:

      1. Whether the trial court erred as a matter of law or abused its
         discretion when adjudicating the juvenile guilty on all accounts
         when the weight of the evidence established reasonable doubt
         in that the juvenile was not even present at the time of the
         reported incident, the victims had two different set of events,
         and that there was a motive to make false statements.

Appellant's Br. at 5; Concise Statement (filed 6/13/2016).

      Appellant raises a challenge to the weight of the evidence.

      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.” Commonwealth v. Blakeney, 946 A.2d 645, 653
      (Pa. 2008). Thus, a weight of the evidence claim must be
      presented to the trial court so that it may address it in the first
      instance. Commonwealth v. Widmer, 689 A.2d 211, 212 (Pa.
      1997). See also Commonwealth v. Karkaria, 625 A.2d 1167,
      1170 n. 3 (Pa. 1993) (“An allegation that the verdict is against the
      ‘weight’ of the evidence is a matter to be resolved by the trial
      court.”).
                                          ***

      [A] weight of the evidence challenge in a juvenile matter assumes


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         the evidence was sufficient to adjudicate the juvenile delinquent
         beyond a reasonable doubt, but asks the juvenile court to
         reassess its adjudication to determine whether certain facts of
         record are so weighty that they warrant the grant of a new
         adjudication hearing.

In re J.B., 106 A.3d 76, 95-96 (Pa. 2014).

         The juvenile court declined to find waiver on the basis of the untimely

filing   of   Appellant’s   1925(b)     statement.   See   TCO   at   2-3   (citing

Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009)).2 Here,

the juvenile court considered the merits of the underlying issue. See TCO at

5. However, the court recognized the need for remand given that the filing of

the notice of appeal divested the juvenile court of its ability to rule on the

weight of the evidence claim raised on appeal. See TCO at 3-4, 6. We agree.

         In order for a weight of the evidence claim to be preserved for appellate

review, the claim must be presented in some manner to the juvenile court for

adjudication in the first instance. In re J.B., 106 A.3d at 95. When a weight

of the evidence claim is raised for the first time in a Pa.R.A.P. 1925(b)

statement, the failure to present the claim to the juvenile court in a post-

dispositional motion does not result in waiver. In re J.B., 106 A.3d at 98.

That is because post-dispositional motions are optional in juvenile matters.

See Pa.R.J.C.P. 620(A)(2) (“Issues raised before or during the adjudicatory


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2 “[I]f there has been an untimely filing, this Court may decide the appeal on
the merits if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal.” Burton, 973 A.3d at 433
(noting that late filing of 1925(b) statement is per se ineffectiveness).

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hearing shall be deemed preserved for appeal whether or not the party elects

to file a post-dispositional motion on those issues.”). However, the juvenile

court has no jurisdiction to act on the weight of the evidence claim, and fulfill

“a necessary prerequisite for appellate review.” In re J.B., 106 A.3d at 98;

Widmer, 689 A.2d at 213 (Cappy, J., concurring) (noting that the trial court

is apt to review the challenge in its 1925(a) opinion in a cursory fashion or

even fail to address the challenge at all); see also Pa.R.A.P. 1701 (describing

effect of appeal generally).

      Like in In re J.B. and Widmer, Appellant first raised his weight of the

evidence claim in his Pa.R.A.P. 1925(b) statement after filing a notice of

appeal.   In re J.B. determined that where the issue is preserved in the

juvenile’s 1925(b) statement, the matter must be remanded to the juvenile

court to provide the juvenile with an opportunity to file a post-dispositional

motion nunc pro tunc. In re J.B., 106 A.3d at 97 (noting “fairness dictates

that the instant case be remanded to the trial court and [the defendant be]

permitted to file a motion for a new trial nunc pro tunc challenging the weight

of the evidence”) (quoting Widmer, 689 A.2d at 213 (Cappy, J., concurring)).

Accordingly, we remand to the juvenile court to allow Appellant to file a post-

dispositional motion for a new trial nunc pro tunc challenging the weight of

the evidence. See id. at 98-99.

      Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018




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