J-A04028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INT. OF: C.N.S., A MINOR            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1104 MDA 2017

                 Appeal from the Order Entered May 10, 2017
       In the Court of Common Pleas of Mifflin County Juvenile Division at
                        No(s): CP-44-JV-0000008-2017


BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED MARCH 13, 2018

        Appellant C.N.S. appeals from the dispositional order1 entered after his

adjudication of delinquency for acts constituting indecent assault (without

consent) and indecent assault (complainant less than 13 years of age).2

Appellant challenges the sufficiency and weight of the evidence. We affirm.

        The juvenile court aptly summarized the evidence presented at the

adjudication hearing.

           The matter before this [c]ourt involves allegations of indecent
        assault by [Appellant] against the victim . . . on multiple
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Appellant purported to appeal from the order denying his post-dispositional
motions. However, an appeal properly lies from the dispositional order made
final by the denial of post-disposition motions, and we have amended the
caption accordingly. See In Interest of N.C., 171 A.3d 275, 278 n.1 (Pa.
Super. 2017).

2   18 Pa.C.S. § 3126(a)(1), (7).
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     occasions. [Appellant] was born in March of 2004. [The victim]
     was born in August of 2008. Both the [Appellant] and [the victim]
     were under 13 years of age at the time the alleged indecent
     assault occurred. [Appellant] and [the victim] share the same
     biological father (Father).

        The first instance of alleged assault occurred in May of 2015 at
     the home of [Father]. Initially, [Appellant], [Father], and
     [Appellant’s] step mother were watching a movie while [the
     victim] played in a tent in an adjacent room of the house. At some
     point, [Appellant’s] Father and step mother fell asleep for a period
     of approximately 15-20 minutes. During this time, [Appellant] left
     the room where Father and step mother were asleep and joined
     [the victim] in the adjacent room. According to the testimony of
     [the victim], the two began playing a game and eventually
     [Appellant] did “inappropriate stuff” to her while inside the tent.
     [The victim] testified that at one point, while she was laying on
     her back, [Appellant] pulled her shorts down and began to lick her
     “vulva” with his tongue. [The victim] clarified that her “vulva” was
     where she “peed from.” According to [the victim], [Appellant] then
     proceeded to get on top of her and that his “private parts” touched
     her “private parts”, although only on the outside. [The victim]
     denied that any part of [Appellant’s] body ever penetrated her
     private parts. After [Appellant] left the home, [the victim] relayed
     what had happened in the tent to her mother, [R.S.].

        The second instance of alleged abuse occurred at the home of
     the minor children’s grandmother, [N.S.] [the victim] testified that
     during a visit, she and [Appellant] were playing behind the couch
     in the living room when he began kissing her on the lips. [The
     victim] denied seeing [Appellant’s] private parts on this occasion
     and denied any inappropriate touching. Both [Appellant] and [the
     victim] were fully clothed during this incident. [The victim] stated
     that [Appellant] eventually asked her, “will you marry me?” to
     which she responded “no.” [N.S.] eventually demanded the
     children come out from behind the couch. She denied seeing any
     inappropriate behavior as the couch and a quilting rack obstructed
     her view.

        The third instance of alleged abuse also occurred at the home
     of [N.S.]. [The victim] testified that, at the time of this incident,
     she and [Appellant] were in the yard and were secluded behind a
     “weed patch” which obstructed their view of the house. [The
     victim] stated that here, again, [Appellant] removed her pants

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      and licked her “vulva” with his tongue while she was lying on her
      back. However, during this incident, [the victim] alleged that
      [Appellant] also removed his pants and asked her to lick his
      private part. [The victim] refused and denied that any other
      inappropriate touching occurred during this incident.

         The fourth and final instance of alleged abuse again occurred
      at the home of [N.S.]. [The victim] alleged that she was on a
      couch in the living room watching television. [Appellant] was
      seated nearby on the floor. [Appellant] proceeded to pull her off
      the couch and onto his lap where he began kissing her. [The
      victim] denied any other inappropriate touching during this
      incident.

         In all instances of alleged abuse, [the victim] denied that any
      part of [Appellant’s] body penetrated her. [The victim] also stated
      that after each instance of abuse, [Appellant] told her not to tell
      anyone what happened but that she did eventually tell her
      parents. Testimony from [Father and R.S.] revealed that they
      contacted Children and Youth Services and the Pennsylvania State
      Police following these incidents. None of the alleged instances of
      sexual abuse were witnessed by third parties who could either
      confirm or deny their validity but [Appellant] did admit on at least
      two separate occasions that sexual contact did occur.

Juvenile Ct. Op., 4/11/17, at 1-3.

      At the conclusion of the adjudication hearing on March 31, 2017, the

parties stipulated that there was insufficient evidence to support the alleged

acts constituting sexual assault and aggravated indecent assault, and the

juvenile court granted Appellant’s motion to dismiss those allegations.

      On April 11, 2017, the juvenile court entered an order and opinion

adjudicating Appellant delinquent for acts constituting indecent assault

(without consent) and indecent assault (complainant under 13 years of age).

Based on the victim’s description of the first incident, the court concluded that

there was “sufficient evidence to conclude that indecent assault occurred


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involving [Appellant’s] tongue and the victim’s genitalia on at least one

occasion.” Id. at 5. The court further credited the victim’s testimony that

Appellant inappropriately kissed her in the second and fourth incidents.

       However, with respect to the first incident, the juvenile court noted that

it could not “definitively say that [Appellant] touched the victim’s genitalia

with his genitalia,” as the victim seemed “less certain” with regard to that

portion of her testimony. Id. at 5. Additionally, given the fact that other

children were nearby during the alleged incident at the weed patch in the third

incident, the court was “not convinced that this encounter could have taken

place without drawing the attention of other nearby individuals.” Id. As a

result, the court rejected the victim’s testimony with regard to the third

alleged incident at the “weed patch.”

       A dispositional hearing was subsequently held on May 10, 2017, at which

point Appellant was placed in custody. On May 19, 2017, Appellant filed a

post-dispositional motion, challenging, inter alia, weight of the evidence,

which the court denied on June 13, 2017. Appellant timely filed a notice of

appeal on July 12, 2017. Both Appellant and the juvenile court complied with

Pa.R.A.P. 1925.

       Appellant raises three questions for review,3 which we have reordered

as follows:

____________________________________________


3Appellant raised a fourth issue in his statement of questions raised on appeal,
namely: “Did the [juvenile] court fail to enter a timely finding pursuant to



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       1. Did the Commonwealth present sufficient evidence to find,
       beyond a reasonable doubt, that [Appellant] engaged in a “course
       of conduct” by kissing [the victim] thereby increasing the grading
       of 18 Pa.C.S.A. § 3126(a)(7) from a misdemeanor of the 1st
       degree to a felony of the 3rd [d]egree[?]

       2. Can a juvenile, under the age of thirteen, be adjudicated
       delinquent of indecent assault, 18 Pa.C.S.A. § 3126(a)(7)?

       3. Was the adjudication of delinquency for indecent assault, 18
       Pa.C.S.A. § 3126(a)(7)(F3) against the weight of the evidence?

Appellant’s Brief at 5 (some capitalization omitted).

       In his first two arguments, Appellant challenges the sufficiency of the

evidence supporting his adjudication of delinquency for indecent assault

(complainant less than 13 years of age).         Our standard of reviewing a

challenge to the sufficiency of evidence is as follows:

           When a juvenile is charged with an act that would constitute a
       crime if committed by an adult, the Commonwealth must establish
       the elements of the crime by proof beyond a reasonable doubt.
       When considering a challenge to the sufficiency of the evidence
       following an adjudication of delinquency, we must review the
       entire record and view the evidence in the light most favorable to
       the Commonwealth.

          In determining whether the Commonwealth presented
       sufficient evidence to meet its burden of proof, the test to be
       applied is whether, viewing the evidence in the light most
       favorable to the Commonwealth, and drawing all reasonable
       inferences therefrom, there is sufficient evidence to find every
       element of the crime charged. The Commonwealth may sustain
       its burden of proving every element of the crime beyond a
       reasonable doubt by wholly circumstantial evidence.


____________________________________________


Pa.R.Juv.P. 408A warranting discharge of [Appellant?]” Appellant’s Brief at 5.
Appellant, however, has expressly withdrawn this claim for consideration. Id.
at 5, 28-29. Therefore, we will not address it.

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            The facts and circumstances established by the Commonwealth
         need not be absolutely incompatible with [the juvenile’s]
         innocence. Questions of doubt are for the hearing judge, unless
         the evidence is so weak that, as a matter of law, no probability of
         fact can be drawn from the combined circumstances established
         by the Commonwealth.

In re A.V., 48 A.3d 1251, 1252-53 (Pa. Super. 2012) (citation omitted).

         As an appellate court, we must review the entire record . . . and
         all evidence actually received[.] [T]he trier 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.
         Because evidentiary sufficiency is a question of law, our standard
         of review is de novo and our scope of review is plenary.

In re C.R., 113 A.3d 328, 333-34 (Pa. Super. 2015) (citations and quotation

marks omitted).

         First, Appellant contends that the Commonwealth failed to establish that

the two “kissing incidents” were sexual in nature.       Appellant’s Brief at 19.

Although Appellant concedes that a person’s mouth and lips are considered an

intimate part of one’s body, Appellant’s conduct was mere familial affection.

Id. Appellant thus asserts that the juvenile court erred in finding that his acts

constituted felony-three indecent assault based on a course of conduct. Id.

at 11.

         Section 3126 of the Crimes Code defines indecent assault, in relevant

part, as follows:

         A person is guilty of indecent assault if the person has indecent
         contact with the complainant, causes the complainant to have
         indecent contact with the person or intentionally causes the
         complainant to come into contact with seminal fluid, urine or feces
         for the purpose of arousing sexual desire in the person or the
         complainant and . . . the complainant is less than 13 years of
         age[.]


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18 Pa.C.S. § 3126(a)(7). “Indecent contact” is defined as “[a]ny touching of

the sexual or other intimate parts of the person for the purpose of arousing

or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

      Indecent assault - complainant under 13 is generally graded as a

misdemeanor of the first degree. 18 Pa.C.S. § 3126(b)(3). However, the

conduct constitutes a felony of the third degree if “[t]here has been a course

of conduct of indecent assault by the person.” 18 Pa.C.S. § 3126(b)(3)(ii).

This Court has construed a “course of conduct” as requiring proof of “multiple

acts over time.” Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super.

2014) (en banc) (interpreting the phrase as used in the corruption of minors

statute, 18 Pa.C.S. § 6301(a)(1)(ii)).

      The juvenile court addressed Appellant’s claim as follows:

      [T]he victim’s testimony at the Disposition Hearing held May 10,
      2017, established that the kissing incidents with [Appellant] were
      not mere familial affection. During said testimony, the victim
      displayed an understanding that touching the intimate parts of
      another was inappropriate and specifically referred to the contact
      between her and [Appellant] as “inappropriate stuff”. Further, the
      victim reported the sexual contact to her parents which indicates
      to this [c]ourt a desire for protection and prevention of further
      sexual contact. Finally, this [c]ourt heard testimony from . . . the
      victim’s therapist . . . , which indicated the victim likely suffers
      from Post-Traumatic Stress Disorder and that the emotional
      distress exhibited by the victim in response to the incidents with
      [Appellant] is typical of a victim of sexual abuse. As a result, this
      [c]ourt does not believe that the kissing incidents were mere
      familial affection.

Juvenile Ct. Order, 6/13/17, at 4.

      The juvenile court also concluded that



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      while the incidents in which [Appellant] kissed the victim both
      occurred in the same general location . . . the incidents occurred
      at separate times and on separate occasions and were not part of
      the same incident. Therefore, there is sufficient evidence to
      establish a pattern of actions, composed of more than one act over
      a period of time[.]

Id. at 13.

      Following our review of the record, we find no error in the juvenile

court’s conclusions. Viewing all of the evidence actually received in the light

most favorable to the Commonwealth, and drawing all reasonable inferences

therefrom, there was sufficient evidence for the court to find Appellant kissed

the victim for the purposes of sexual arousal or gratification. Additionally, we

note the record supports the court’s finding that Appellant licked the victim on

or near her genitalia on at least one occasion. Given the clear sexual nature

of that conduct, it was reasonable for the court to infer that the kisses between

Appellant and the victim were of a sexual nature and adjudicate him

delinquent for indecent assault.

      Moreover, because the evidence also established that Appellant engaged

in two acts of kissing the victim for sexual purposes, there was a “course of

conduct of indecent assault” as required by 18 Pa.C.S. § 3126(b)(3)(ii). Cf.

Kelly, 102 A.3d at 1031. Therefore, Appellant’s challenge to the sufficiency

of the evidence supporting his adjudication for felony-three indecent assault

(complainant less than 13 years of age) fails.

      Appellant next contends that his adjudication cannot stand because an

individual under 13 years old is incapable of predatory sexual conduct. In



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support, Appellant relies on this Court’s holding in In re B.A.M., 806 A.2d 893

(Pa. Super. 2002).

      B.A.M. involved two eleven-year-old boys, B.A.M. and J., who rode their

bikes into the woods. Id. at 893. Once there, they performed anal sex on

one another. Id. at 893-94. At some point, J. got chewing gum on his penis.

Id. at 894. That evening, J.’s grandmother saw J. trying to remove the gum.

J. told his grandmother that B.A.M. had forced him to participate in the sexual

activity. Id. Following the incident, the Commonwealth filed a delinquency

petition against only one of the boys, B.A.M.

      The juvenile court adjudicated B.A.M. delinquent for acts constituting

rape (victim under 13) and involuntary deviate sexual intercourse (IDSI)

(victim under 13), but dismissed the allegations regarding forcible compulsion

and lack of consent. Id. B.A.M. appealed, contending that “an 11–year–old

boy [should not be held] criminally responsible for having consensual sexual

relations with another 11–year–old boy.” Id. On appeal, this Court reversed

B.A.M.’s adjudication.

      In its analysis, the B.A.M. Court concluded there is “no legitimate

interest in prosecuting consensual activity between two children under 13.

Any contrary conclusion would lead only to absurdity.”        Id.   The Court

reasoned that the legislature intended to protect children from older

predators, but did not intend to criminalize mutually agreed-upon sexual

activity between juveniles in the same peer group. Id. at 897. Therefore,

the Court suggested that while sexual activity between peers is not necessarily

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a crime, the same behavior becomes criminal when the ages of the

participants are “significantly disparate and/or the acts were not mutually

agreed upon.” Id.

      The B.A.M. Court continued:

      If, by virtue of age alone a child under 13 is incapable of
      consenting to sexual activity, he or she must be presumed, absent
      clear evidence to the contrary, to be equally incapable, in any
      sense implicating criminal liability, of initiating such conduct. . . .
      It is therefore absurd to penalize one youngster while the other
      faces no sanction for precisely the same behavior. Either both
      boys must be punished/counseled/treated, or neither can be; as
      the trial court definitively found, both boys were willingly
      participants and J. was not victimized by the experience. The law
      was not intended to render criminal per se the experimentation
      carried on by young children, even where the acts may evoke
      disapprobation or censure.

Id. at 898 (footnote omitted).

      This Court has consistently limited B.A.M. to the facts of that case. In

C.R., a twelve-year-old juvenile relied on B.A.M. to claim that he could not

be adjudicated delinquent for sexual acts because he was under thirteen years

of age. See C.R., 113 A.3d at 333-34. The C.R. Court rejected the juvenile’s

argument, noting that the B.A.M. Court did “not hold that a 13-year-old

cannot be held criminally liable for initiating sexual activity; rather, it held

that one child could not be held criminally liable for the acts of two 11-year-

olds who consensually engaged in the conduct.”          Id. at 334 (emphasis in

original).   The C.R. Court further emphasized that the record in B.A.M.




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established that the acts at issue were consensual.4 Additionally, this Court

reiterated the limited holding of B.A.M., explaining that “[w]ere we to have

worded our holding in B.A.M. more precisely, we would have strictly limited

the holding to its facts wherein mutually agreed upon sexual activity between

peers under the age of 13 is not a crime.” Id. at 335 (citation omitted).

       For the reasons set forth in C.R., we find Appellant’s reliance on B.A.M.

to be unavailing. First, the instant case does not involve peers. Appellant

was eleven years old when he committed the subject acts against a six-year-

old. Second, the record supports the juvenile court’s finding that Appellant

committed the acts without the victim’s consent and there is no basis in the

record to conclude that the sexual activities constituted mutually agreed-upon

conduct.    Lastly, were we to extend B.A.M. in the manner that Appellant

suggests, it would effectively absolve individuals under the age of thirteen

from criminal liability in any sex case.       See C.R., 113 A.3d at 335.

       Finally, Appellant contends that the juvenile court’s finding of

delinquency was against the weight of the evidence. Appellant argues that the

victim lacked credibility due to the victim’s age, the amount of testimony that

was rejected, the lack of corroborating evidence, and the “[victim’s]

undisputed reputation for ‘stretching the truth.’” Appellant’s Brief at 11.
____________________________________________


4 Appellant argues that C.R. is distinguishable because that case involved a
victim who was deemed incapable of consenting because of a mental
disability. See C.R., 113 A.3d at 334 (citing 18 Pa.C.S. § 3123(a)(5)).
However, any distinctions grounded in the victim’s mental capacity or age is
immaterial given Appellant’s argument that he was incapable of initiating
sexual activity based on his age.

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Appellant notes that two of the original delinquent acts (sexual assault and

aggravated indecent assault) were dismissed at the conclusion of the

adjudicatory hearing and that the juvenile court found portions of the victim’s

testimony regarding the first incident inside the tent were not credible. Id. at

21.   Appellant also argues that there were inadequate opportunities for

Appellant to have committed the subject acts and the allegations against

Appellant arose in the context of an ongoing custody dispute. Id. at 22.

      In assessing a weight of the evidence claim, our standard of review is

well-settled.

             The weight of the evidence is exclusively for the finder of
         fact who is free to believe all, part, or none of the evidence
         and to determine the credibility of the witnesses. An
         appellate court cannot substitute its judgment for that of the
         finder of fact. Thus, we may only reverse the lower court’s
         verdict if it is so contrary to the evidence as to shock one’s
         sense of justice. Moreover, where the trial 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. Rather, appellate
         review is limited to whether the trial court palpably abused
         its discretion in ruling on the weight claim.

      This Court applies the same standard for reviewing weight claims
      in juvenile cases. In considering weight of the evidence claims, it
      is not the function of an appellate court to substitute its judgment
      based on a cold record for that of the judge who conducted the
      juvenile adjudication hearing. Credibility is for the trier of fact,
      who is free to believe all, part or none of the evidence presented.
      A challenge to the weight of the evidence concedes that sufficient
      evidence exists to sustain the verdict, but questions which
      evidence is to be believed. An appellate court reviews the trial
      court’s exercise of discretion, not the underlying question of
      whether the verdict is against the weight of the evidence.

In re R.N., 951 A.2d 363, 370-71 (Pa. Super. 2008) (citations omitted).

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      The juvenile court, when considering Appellant’s weight of the evidence

claim, acknowledged that it found portions of the victim’s testimony to be

incredible with respect to genital-to-genital contact during the first incident

and as to the third incident in its entirety. The court opined that

      the rest of the victim’s testimony remains credible so far as her
      claim that [Appellant] touched her genitalia with his tongue during
      the incident in May of 2015 and that [Appellant] kissed her on
      intimate areas of her body on multiple other occasions.
      Throughout her examination and cross-examination, the victim
      remained adamant that these acts had occurred. Further, the
      victim’s consistent reporting of the sexual contact to her parents
      and the testimony from [the victim’s therapist] regarding the
      victim’s symptoms of Post-Traumatic Stress Disorder, which she
      deemed to be consistent with sexual abuse, increased the
      reliability of the victim’s testimony. . . .

Juvenile Ct. Order, 6/13/17, at 15.

      Upon review of the record, we discern no abuse of discretion in the

juvenile court’s rejection of Appellant’s weight claim. See R.N., 951 A.2d at

370-71. Here, the court found the victim’s testimony credible with respect to

the acts constituting indecent assault (complainant less than 13 years of age).

Thus, the juvenile court did not abuse its discretion by concluding that the

adjudication was not so contrary to the evidence as to shock the court’s

conscience. See id. Accordingly, this claim merits no relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2018




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