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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.L.A., A MINOR             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


APPEAL OF: B.L.A., A MINOR
                                                     No. 2007 MDA 2014


            Appeal from the Dispositional Order of October 27, 2014
               In the Court of Common Pleas of Dauphin County
               Juvenile Division at No.: CP-22-JV-0000299-2014


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 29, 2015

       B.L.A., a minor, appeals the October 27, 2014 dispositional order. We

affirm.

       On March 31, 2014, “a large group of Latino males,” one of whom was

B.L.A., assembled “across the street from Rowland [Academy (“Rowland”)]

at the end of the school day.” Juvenile Court Opinion (“J.C.O.”), 2/26/2015,

at 3. Throughout the two-week period leading up to that day, Dean Garges,

Rowland’s principal, had called the police six or seven times to report “a

large group of Latino boys hanging around on school property.”        Id.   The

Harrisburg Bureau of Police responded to those reports, and to other

“massive fights” at Rowland, which involved “approximately one to two

hundred juveniles who would meet after school to fight.” Id.


____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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      Garges believed that the juveniles were looking for a particular

Rowland student who had been expelled earlier in the week. In an effort to

disband the group before Rowland dismissed its students, Garges identified

himself as the school’s principal and ordered the juveniles to leave.      The

group did not disperse; instead, they began to harass several Rowland

students as they left the campus at the end of the school day. Specifically,

the males were “curs[ing] at and chas[ing] the school children down the

street.” Id. at 4.

      Garges got into his truck and drove to the area where he suspected

that a fight was about to break out. Garges recorded the incident with his

iPhone, while he demanded that the males disperse and allow his students to

get home safely.

      After [Garges] informed the crowd that the person they were
      looking for was not there, [B.L.A.] broke through the crowd
      screaming for [Garges’] iPhone. [B.L.A.] reached into [Garges’]
      truck and tried to take the iPhone, but was unsuccessful because
      [Garges] had thrown it across the truck and onto the floor on the
      other side. [B.L.A.] yanked the truck door open and yelled,
      “[p]ull the motherfucker out.” [B.L.A.] and two others began to
      pull [Garges] out of his truck, but he kicked and was able to pull
      the truck door shut. [B.L.A.] punched [Garges’] truck and
      attempted to punch [Garges,] but missed and hit his glasses
      instead, which sent them flying across the truck. [Garges] . . .
      then left the scene after making sure no one was in front of his
      truck.

Id. at 4-5.




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       As a result of these events, the Commonwealth filed a delinquency

petition alleging acts of robbery and aggravated assault. 1    On October 27,

2014, after a hearing, the juvenile court adjudicated B.L.A. delinquent of

both of these offenses, and placed him on probation. On November 5, 2014,

B.L.A. timely filed a post-dispositional motion, wherein he argued that “the

verdict was contrary to the weight of the evidence.”             B.L.A.’s Post-

Dispositional Motion, 11/5/2014, at 2 (unnumbered).

       On November 26, 2014, before the juvenile court had ruled upon his

motion, B.L.A. filed a notice of appeal. On December 16, 2014, B.L.A. filed

with this Court an application for remand pending the resolution of his post-

dispositional motion.      We directed B.L.A. to file with the juvenile court a

praecipe for entry of an order denying his post-dispositional motion by

operation of law. B.L.A. complied, and the juvenile court entered such an

order on January 9, 2015. Accordingly, we treat B.L.A.’s notice of appeal as

if he had filed it on January 9, 2015. See Pa.R.A.P. 905(a)(5) (“A notice of

appeal filed after the announcement of a determination but before the entry

of an appealable order shall be treated as filed after such entry and on the

day thereof.”). B.L.A. filed a concise statement of errors complained of on

appeal on February 2, 2015, and the juvenile court filed a Pa.R.A.P. 1925(a)

opinion on February 23, 2015.


____________________________________________


1
       18 Pa.C.S. §§ 3701(a)(1)(v), and 2702(a)(3), respectively.



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     B.L.A. presents one issue for our consideration: “Whether the trial

court erred in denying [B.L.A.’s] post-dispositional motion where his

adjudications of delinquency were against the weight of the evidence as he

was never shown to have engaged in conduct constituting the offenses [for]

which he was adjudicated delinquent?” Brief for B.L.A. at 5.

     Appellate review of a challenge to the weight of the evidence entails

review of the exercise of discretion, not of the underlying question of

whether the verdict itself was against the weight of the evidence.

Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). Because the

juvenile court had the opportunity to see and hear the evidence presented,

we give the gravest consideration to the findings and reasons advanced by

the judge when reviewing a juvenile court’s determination that the verdict is

not against the weight of the evidence. Commonwealth v. Farquharson,

354 A.2d 545 (Pa. 1976).      In effect, “the [juvenile] court’s denial of a

motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Ramtahal, 33 A.3d 602, 609

(Pa. 2011).

     In framing his issue as a challenge to the weight of the evidence,

B.L.A. conflates two distinct claims with different standards of review.   In

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000), our Supreme Court

highlighted the distinction between a challenge to the sufficiency of the

evidence, which contests the quantity of the evidence presented at trial,




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and a challenge to the weight of the evidence, which attacks the quality of

that evidence.

     The distinction between these two challenges is critical. A claim
     challenging the sufficiency of the evidence, if granted, would
     preclude retrial under the double jeopardy provisions of the Fifth
     Amendment to the United States Constitution, and Article I,
     Section 10 of the Pennsylvania Constitution, whereas a claim
     challenging the weight of the evidence if granted would permit a
     second trial.

     A claim challenging the sufficiency of the evidence is a question
     of law. Evidence will be deemed sufficient to support the verdict
     when it establishes each material element of the crime charged
     and the commission thereof by the accused, beyond a
     reasonable doubt. Where the evidence offered to support the
     verdict is in contradiction to the physical facts, in contravention
     to human experience and the laws of nature, then the evidence
     is insufficient as a matter of law. When reviewing a sufficiency
     claim the court is required to view the evidence in the light most
     favorable to the verdict winner giving the prosecution the benefit
     of all reasonable inferences to be drawn from the evidence.

     A motion for new trial on the grounds that the verdict is contrary
     to the weight of the evidence, concedes that there is sufficient
     evidence to sustain the verdict. Thus, the trial court is under no
     obligation to view the evidence in the light most favorable to the
     verdict winner. An allegation that the verdict is against the
     weight of the evidence is addressed to the discretion of the trial
     court. A new trial should not be granted because of a mere
     conflict in the testimony or because the judge on the same facts
     would have arrived at a different conclusion. A trial judge must
     do more than reassess the credibility of the witnesses and allege
     that he would not have assented to the verdict if he were a
     juror. Trial judges, in reviewing a claim that the verdict is
     against the weight of the evidence do not sit as the thirteenth
     juror. Rather, the role of the trial judge is to determine that
     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.

Id. at 751-52 (citations, footnotes, and quotation marks omitted).


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       Instantly, the juvenile court adjudicated B.L.A. delinquent of robbery

and aggravated assault. The latter offense required the Commonwealth to

demonstrate beyond a reasonable doubt that B.L.A. attempted to cause or

intentionally or knowingly caused bodily injury to “[a] teaching staff

member, school board member[,] or other employee . . . of any elementary

or secondary publicly-funded educational institution . . . while acting in the

scope of his or her employment or because of his or her employment

relationship to the school.” 18 Pa.C.S. § 2702(c)(27). In arguing that his

delinquency adjudication was against the weight of the evidence, B.L.A.

maintains that “the Commonwealth did not demonstrate that Garges was

acting in his capacity as a school principal” when he was assaulted.      See

Brief for B.L.A. at 10.

       B.L.A. evidently misunderstands the nature of a challenge to the

weight of the evidence, which “concedes that there is sufficient evidence to

sustain the verdict.” Widmer, 744 A.2d at 752. B.L.A.’s only contention on

appeal is that the Commonwealth failed to establish an element of the

offense for which he was adjudicated delinquent. This presents a challenge

to the sufficiency, rather than the weight, of the evidence presented at his

adjudication hearing.2 B.L.A. has failed to preserve such a challenge for our


____________________________________________


2
      Indeed, the only relevant case law B.L.A. cites in his appellate brief is
In Interest of D.S., 622 A.2d 954, 961 (Pa. Super. 1993), a case involving
a challenge to the sufficiency of the evidence.



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review. In his 1925(b) statement, B.L.A. asserted only that his “adjudication

of delinquency was against the weight of the evidence so as to shock one’s

sense of justice.” See B.L.A.’s Concise Statement of Errors Complained of

on Appeal, 2/3/2015, at 1 (emphasis added). Therefore, he has waived his

challenge to the sufficiency of the evidence. See Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b)

statement will be deemed waived.”); Pa.R.A.P. 1925(b)(4)(vii).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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