J-A19028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: S.P., A                :   IN THE SUPERIOR COURT OF
    JUVENILE                                   :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: S.P., A JUVENILE                :
                                               :
                                               :
                                               :
                                               :   No. 2508 EDA 2016

                        Appeal from the Order July 6, 2016
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-JV-0000439-2016


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                            FILED SEPTEMBER 21, 2017

        Appellant, S.P., appeals from the July 6, 2016 Order of Disposition

entered in the Court of Common Pleas of Montgomery County, which

ordered Appellant to serve a period of probation after being adjudicated

delinquent for Involuntary Deviate Sexual Intercourse, Indecent Assault, and

Indecent Exposure.1 After careful review, we remand with instructions.

         A detailed recitation of the facts is unnecessary to our disposition. In

sum, on May 13, 2016, 15-year-old Victim and her friend, E.H., met 16-

year-old Appellant at a park around 11:00 P.M. to smoke marijuana. When

Victim was leaving, Appellant requested payment in the form of money or

sex. When Victim refused, Appellant instructed E.H. to leave them alone.
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1
  18 Pa.C.S. § 3123(a)(1); 18 Pa.C.S. § 3126(a)(2); and 18 Pa.C.S. §
3127(a), respectively.
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      Once E.H. walked away, Appellant proceeded to forcefully touch

Victim’s buttocks, put his hand inside Victim’s leggings, and rub Victim’s

vaginal area over her underwear. Appellant exposed his penis, grabbed the

back of Victim’s neck, and said “give me a quick bop,” which is slang for oral

sex. Victim repeatedly refused Appellant’s advances, told Appellant to get

off her, and pushed Appellant away. E.H. returned and Victim and E.H. left

the park.

      Later that evening, Appellant sent Victim a Snapchat message

referencing their encounter. Victim took a picture of the Snapchat message

using her cell phone (“screen shot”), which the Commonwealth entered into

evidence during the adjudicatory hearing without objection.

      On June 17, 2016, after an adjudicatory hearing, the juvenile court

adjudicated Appellant delinquent. On July 6, 2016, the juvenile court held a

dispositional hearing and placed Appellant on probation until further order of

the court.   Appellant did not file a post-dispositional motion pursuant to

Pa.R.J.C.P. 620. Appellant timely appealed. Both Appellant and the juvenile

court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. Was the evidence insufficient to find that [Appellant]
         committed the crimes of [18 Pa.C.S. § 3123]: Involuntary
         Deviate Sexual Intercourse, Forcible Compulsion, F-1, [18
         Pa.C.S. § 3126]: Indecent Assault, Forcible Compulsion, M-1,
         and [18 Pa.C.S. § 3127]: Indecent Exposure, M-2?




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      2. Did the evidence establish that Commonwealth Exhibit C-5, a
         [Snapchat] screen shot, was written by [Appellant] and/or
         forwarded by [Appellant] to [Victim]?

      3. Did the [juvenile court] give undue weight to Commonwealth
         Exhibit C-5, a [Snapchat] screen shot, that was entered into
         evidence without being properly authenticated by the
         prosecution?

      4. Was Commonwealth Exhibit C-5, a [Snapchat] screen shot,
         altered and changed by [Victim] diminishing the relevance
         and weight of the evidence?

      5. Does the surveillance video marked as Commonwealth Exhibit
         8 reveal that no assault occurred in the park?

      6. Did the [juvenile court] abuse its discretion by ignoring the
         evidence of the surveillance video marked as Commonwealth
         Exhibit 8 giving the time of the alleged assault and Defense
         Exhibit 1, the discovery compact disc containing the times of
         the text messages between [Victim] and her mother
         indicating that the victim was texting her mother at the time
         of the alleged assault?

      7. Did the [juvenile court] abuse its discretion by not giving
         [Appellant]’s character evidence sufficient weight?

Appellant’s Brief at 4-5 (reordered for ease of disposition).

      Our standard of review of dispositional orders in juvenile proceedings

is well settled.   The Juvenile Act grants broad discretion to juvenile courts

when determining an appropriate disposition.           In re C.A.G., 89 A.3d 704,

709 (Pa. Super. 2014). We will not disturb the juvenile court’s disposition

absent a manifest abuse of discretion. In Interest of J.G., 145 A.3d 1179,

1184 (Pa. Super. 2016).

      Appellant first challenges the sufficiency of the evidence, averring that

the   evidence     was   insufficient   to   support   Appellant’s   adjudication   of


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delinquency for Involuntary Deviate Sexual Intercourse, Indecent Assault,

and Indecent Exposure.      Appellant’s Brief at 4.   We find this issue to be

waived.

      Pennsylvania Rule of Appellate Procedure 1925(b) provides, inter alia,

that, in a statement of matters complained of on appeal, an appellant “shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge[,]” and

issues that are not properly raised are deemed waived.                Pa.R.A.P.

1925(b)(4).    This Court has repeatedly stated, “[i]n order to preserve a

challenge to the sufficiency of the evidence on appeal, an appellant's Rule

1925(b) statement must state with specificity the element or elements [of

the challenged offense] upon which the appellant alleges that the evidence

was insufficient.”   In Interest of J.G., supra at 1189 (citation and

quotation omitted). Such specificity is of particular importance in cases

where an appellant is convicted of multiple crimes and each crime contains

numerous      elements   that   the   Commonwealth    must   prove   beyond   a

reasonable doubt. Id.

      Appellant was adjudicated delinquent for three separate crimes, each

of which contained numerous elements.        In his Rule 1925(b) Statement,

Appellant presented his challenge to the sufficiency of the evidence as

follows:




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       Was the evidence insufficient to find that [Appellant] committed
       the crimes of [18 Pa.C.S. § 3123]: Involuntary Deviate Sexual
       Intercourse, Forcible Compulsion, F-1, [18 Pa.C.S. § 3126]:
       Indecent Assault, Forcible Compulsion, M-1, and [18 Pa.C.S. §
       3127]: Indecent Exposure, M-2?

Appellant’s Statement of Matters Complained of on Appeal, filed 9/29/16, at

¶1.    Appellant utterly failed to specify which elements of which crimes he is

challenging for lack of sufficient evidence. We conclude Appellant has, thus,

waived this issue. See In Interest of J.G., supra.2

       Appellant next challenges the authenticity of the Snapchat screen shot

that   the   Commonwealth         introduced      and   entered   into   evidence   as

Commonwealth Exhibit C-5. He contends that the Commonwealth failed to

establish that the screen shot “was written by the [Appellant] and/or

forwarded by [Appellant] to [Victim].”           Appellant’s Brief at 4. A review of

the record reveals that Appellant did not object to the screen shot’s

authenticity or introduction into evidence during the adjudicatory hearing.

Accordingly, Appellant has failed to preserve this issue for appeal, and, thus,



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2
  Likewise, Appellant fails to develop this issue properly in his Brief by again
failing to specify which elements of which crimes he is challenging for lack of
sufficient evidence. Accordingly, even if preserved, this claim is waived for
lack of development.       See Pa.R.A.P. 2119(a)-(b) (requiring a properly
developed argument for each question presented including a discussion of
and citation to authorities in appellate brief); Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (stating
failure to conform to the Rules of Appellate Procedure results in waiver of
the underlying issue).



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it is waived. See Pa.R.A.P. 302 (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).

       Appellant’s next five issues all challenge the weight of the evidence.

Generally, a weight of evidence claim is “addressed to the discretion of the

judge who actually presided at trial.”           In re J.B., 106 A.3d 76, 95 (Pa.

2014) (citations and quotation omitted). Once a trial court rules on a weight

claim, this Court can then review the trial court’s ruling for an abuse of

discretion. Id.

       Appellant did not raise his weight challenges in a post-dispositional

motion pursuant to Pa.R.J.C.P. 620.3               Rather, Appellant raised these

challenges for the first time in his Rule 1925(b) Statement.         Although the

juvenile court addressed the challenges in its Rule 1925(a) Opinion, our

precedential case law requires that we remand the case to give Appellant the

opportunity to file a post-dispositional motion nunc pro tunc challenging the

weight of the evidence so that the juvenile court can render a specific ruling.

       The Pennsylvania Supreme Court recently determined that in juvenile

delinquency matters, unlike in adult criminal cases, the failure to preserve a

weight of the evidence challenge in a post-dispositional motion does not

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3
  Rule 620(A), entitled “Optional Post-Dispositional Motion[,]” gives parties
the right to make a post-dispositional motion and states, inter alia, that
“[i]ssues raised before or during the adjudicatory hearing shall be deemed
preserved for appeal whether or not the party elects to file a post-
dispositional motion on those issues.” Pa.R.J.C.P. 620(A).



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result in automatic waiver of the claim on appeal. In re J.B., supra, at 98.

Like Appellant here, the juvenile defendant in In re J.B., did not file a post-

dispositional motion, but raised a challenge to the weight of evidence in his

Rule 1925(b) Statement, which prompted the trial court to address the issue

in its Rule 1925(a) Opinion. Id. at 89-90. In concluding that the issue had

not been waived, our Supreme Court specifically recognized that a finding of

waiver in juvenile proceedings has a harsher consequence for a juvenile than

a similarly situated adult criminal defendant.      The Court noted that a

juvenile cannot raise such a challenge under the Post-Conviction Relief Act,

and “the absence of that avenue of collateral relief for [a juvenile appellant]

provides a stronger reason to decline to impose waiver[.]”        In re J.B.,

supra at 98. The Court then concluded that the appropriate remedy is to

remand the case to the juvenile court for the filing of a post-dispositional

motion nunc pro tunc challenging the weight upon which the court could

then make a specific ruling. Id.

      Like the juvenile appellant in In re J.B., Appellant here raised his

challenge to the weight of the evidence for the first time in his Rule 1925(b)

Statement.    Although the juvenile court addressed the weight of the

evidence challenge in its Rule 1925(a) Opinion, In re J.B. requires that we

remand the case to give Appellant the opportunity to file a post-dispositional

motion nunc pro tunc challenging the weight of the evidence.         See also

Interest of J.G., supra at 1187-88 (following In re J.B. and remanding to


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permit the juvenile to file a post-dispositional motion nunc pro tunc

challenging the weight of evidence).

     In sum, we conclude that Appellant waived his challenges to the

sufficiency of the evidence and the authenticity of the Snapchat screen shot.

We remand for further proceedings limited to Appellant’s challenge to the

weight of the evidence.

     Case remanded for further proceedings. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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