J-S58030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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



                                                   No. 568 MDA 2015


         Appeal from the Dispositional Order of February 25, 2015
            In the Court of Common Pleas of Lancaster County
           Juvenile Division at No(s): CP-36-JV-0000021-2014
                         CP-36-JV-0000022-2014


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED JANUARY 14, 2016

     Appellant, B.N.B., appeals from the order of disposition entered on

February 25, 2015. We affirm.

     The juvenile court provided a thorough and well-written summary of

the underlying facts and procedural posture of this case.   As the juvenile

court explained, following an adjudicatory hearing, it concluded that the

Commonwealth proved the following facts beyond a reasonable doubt:

        [J.H., who was born in August 2001, was one of Appellant’s
        victims. Appellant] and J.H. often played together at
        [Appellant’s] residence in Columbia, Pennsylvania. On one
        occasion [] when J.H. was [11] years old, she played hide
        and seek with [Appellant] and her brother in [Appellant’s]
        bedroom.     When the children began playing, J.H. and
        [Appellant] began as hiders and J.H. hid herself in a dark
        closet. [Appellant] later entered the closet and sat next to
        J.H. While there, [Appellant] laid his leg across the leg of
        J.H., making her feel “very uncomfortable.” Later [that
        day], when [Appellant] became the seeker, J.H. hid
        between a pair of mattresses. When [Appellant] found J.H.,
        he reached between the mattresses and began rubbing his

* Retired Senior Judge assigned to the Superior Court
J-S58030-15


          hand across J.H.’s butt for a period of at least five []
          seconds. J.H. responded by asking [Appellant] to stop, but
          [Appellant] persisted in touching her butt. J.H. then moved
          away to stop the touching and later told her [m]other about
          the incident.

                                           ...

          [A.H.W., who was born in February 1998, was another of
          Appellant’s victims.] A.H.W. often stayed overnight at the
          residence of [Appellant, who was] her cousin. A.H.W. would
          sleep in [Appellant’s] bedroom along with her siblings.
          A.H.W. testified that during the night[, Appellant] would
          touch her vaginal area and breasts while A.H.W. and her
          siblings slept in the same bedroom. The last occasion
          A.H.W. could recall of [Appellant] touching her was when
          she was [10 years old].          [At this time, Appellant]
          approached [A.H.W.] at night and said nothing. Like on
          prior occasions, [Appellant] proceeded to touch her vaginal
          area and her breasts. A.H.W. could not recall whether she
          was clothed or not at the time. However, A.H.W. could
          recall that on [the prior] occasions[,] she was clothed.
          A.H.W. testified that she would tell [Appellant] to stop but
          could not recall whether [Appellant] stopped on this
          occasion. A.H.W. did not immediately tell her family of the
          incident out of fear of the [perceived] consequences. [Yet,
          in August 2013,] A.H.W. [] reveal[ed] that [Appellant had]
          touched her private areas. . . .

          [In 2014, Appellant was arrested and accused of committing
          the above acts, which, if Appellant were an adult, would
          have constituted two counts of indecent assault upon a
          person who is less than 13 years of age.1 With respect to
          the above acts, the relevant portions of the juvenile
          petitions filed against Appellant declared:

              [Juvenile Petition 21] COUNT #2: (Indecent Assault)
              (M1)

____________________________________________


1
    18 Pa.C.S.A. § 3126(a)(7).




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          In violation of section 3126(a) of the Pennsylvania
          Crimes Code, [Appellant], on or between 1 January
          2013 and 15 July 2013, did unlawfully have indecent
          contact with [J.H.] to come into contact with seminal
          fluid, urine or feces for the purpose of arousing sexual
          desire in the person or the complainant and when the
          other person is less than 13 years of age; to wit:
          [Appellant] did intentionally touch the victim J.H. (DOB
          [August 2001]), on her buttocks when the victim [was]
          less than 13 years of age, in a bedroom of the home
          located at [___] Street, Columbia, Pennsylvania.

                                   ...

          [Juvenile Petition 22] COUNT #1: (Indecent Assault)
          (M1)
          In violation of section 3126(a) of the Pennsylvania
          Crimes Code, [Appellant], on or between 1 January
          2007 and 15 July 2012, did unlawfully, have indecent
          contact with [A.H.W.], or caus[ed] [A.H.W.] to have
          indecent contact with the person or intentionally cause[d
          A.H.W.] to come into contact with seminal fluid, urine or
          feces for the purpose of arousing sexual desire in the
          person or the complainant and when the other person is
          less than 13 years of age; to wit: [Appellant] did
          intentionally touch the victim, A.H.W. (DOB: [February
          1998]) when she was 8 or 9 years old on her chest and
          vaginal area with his hand at [___] Street, Marietta,
          Pennsylvania.


       Juvenile Petition 21, 1/17/14 at 2; Juvenile Petition 22,
       1/17/14, at 1].


       At the conclusion of the [June 5, 2014 adjudicatory]
       hearing, the [juvenile court] adjudicated [Appellant]
       delinquent [for committing the two acts of indecent assault
       and, on February 25, 2015, the juvenile court entered its
       order of disposition in the matter, finding Appellant in need
       of guidance and supervision and placing Appellant on
       probation under the supervision of the county juvenile
       probation office.]


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Juvenile Court Opinion, 5/22/15, at 4-5 (internal citations omitted).

       Appellant filed a timely notice of appeal from the order of disposition

and Appellant now raises the following claim to this Court:2

         Was the evidence presented by the Commonwealth
         insufficient to sustain an adjudication of delinquency where
         the Commonwealth was unable to establish with reasonable
         certainty dates whe[n] the incidents were alleged to have
         occurred?

Appellant’s Brief at 5.

       Appellant challenges the sufficiency of the evidence supporting his

adjudication of delinquency.         We review Appellant’s sufficiency challenge

under the following standard:

         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
____________________________________________


2
  The juvenile court ordered Appellant to file and serve a concise statement
of errors complained of on appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). Appellant complied and listed the above
sufficiency of the evidence claim in his Rule 1925(b) statement. Appellant’s
Rule 1925(b) Statement, 4/27/15, at 1.



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         element of the crime beyond a reasonable doubt by wholly
         circumstantial evidence.

         The facts and circumstances established by the
         Commonwealth need not be absolutely incompatible with a
         [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, 1252-1253 (Pa. Super. 2012) (internal quotations

and citations omitted). Further, the “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.” Commonwealth v. Castelhun,

889 A.2d 1228, 1232 (Pa. Super. 2005).

       According to Appellant, the evidence was insufficient to support his

adjudications because the Commonwealth was unable to “prove the date of

the offense[s] with sufficient particularity to sustain [the adjudications].”

Appellant’s Brief at 13. Within Appellant’s brief to this Court, Appellant does

not claim that the Commonwealth’s alleged failings either placed an undue

burden upon or caused him to forgo any specific defense. Instead, Appellant

essentially claims that the periods of time – within which the Commonwealth

proved that Appellant’s two instances of illegal conduct occurred – were per

se “insufficient to sustain [the] adjudication[s] of delinquency in this case.” 3

Id. at 16. This claim fails.
____________________________________________


3
  The “date of the offense” is not an element of the crime of indecent
assault.   Nevertheless, as this Court has held, a claim that the
Commonwealth failed to “fix the date when [the] alleged offenses occurred
(Footnote Continued Next Page)


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      On appeal, Appellant relies primarily upon the Pennsylvania Supreme

Court’s opinion in Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975). In

the Devlin case, Mr. Devlin was arrested and accused of committing sodomy

against a 22-year-old individual “who had the mental ability of a first or

second grade child and the emotional stability of an even younger child.”

Id. at 889. At trial, the Commonwealth presented evidence that Mr. Devlin

had sodomized the victim one time – and that “the crime occurred some

time within a [14-]month period from February 1971 to April 1972.” Id.

      At the conclusion of the Commonwealth’s case, Mr. Devlin “demurred

to the prosecution’s evidence on the ground that the Commonwealth had not

fixed the date of the crime with sufficient particularity, and thus the charge

was impossible to defend.” Id. at 890. The trial court denied Mr. Devlin’s

motion and, after Mr. Devlin was convicted of sodomy, Mr. Devlin appealed

                       _______________________
(Footnote Continued)

with reasonable certainty [at trial]” is one that implicates the sufficiency of
the evidence. Commonwealth v. Robinson, 462 A.2d 840, 841-842 (Pa.
Super. 1983); see also Commonwealth v. Groff, 548 A.2d 1237, 1241
(Pa. Super. 1988) (“[the a]ppellant faults his trial counsel for failing to
preserve the issue of whether the Commonwealth denied him due process of
law. More specifically, appellant maintains that the Commonwealth violated
his rights under Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975),
which held that the prosecution must fix the date when an alleged offense
occurred with reasonable certainty. A Devlin claim is a form of motion in
arrest of judgment; if the claim is meritorious, the proper remedy is to
vacate judgment of sentence and discharge the defendant”) (internal
citations omitted); Commonwealth v. Manchas, 633 A.2d 618 (Pa. Super.
1993) (“[t]he proper procedure to challenge the sufficiency of the evidence
is by a post-verdict motion in arrest of judgment”) (internal citations
omitted).



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to the Pennsylvania Supreme Court.         The sole issue before the Supreme

Court was “whether the Commonwealth proved the date of the crime with

sufficient particularity to uphold the conviction.” Id. at 889.

      In analyzing the claim, the Devlin Court initially quoted, with

approval, an earlier statement from this Court regarding the applicable rule

of law:

          It may be conceded that in the prosecution of crimes of the
          kind here involved the Commonwealth is not required to
          prove their commission on the date laid in the indictment,
          but, failing in that, we think it has the burden, in order to
          sustain a conviction, of proving their commission upon some
          other date, fixed with reasonable certainty and being within
          the prescribed statutory period.

          In other words, where a particular date or day of the week
          is not of the essence of the offense, the date laid in the
          indictment is not controlling, but some other reasonably
          definite date must be established with sufficient particularity
          to advise the jury and the defendant of the time the
          Commonwealth alleges the offense was actually committed,
          and to enable the defendant to know what dates and period
          of time he must cover if his defense is an alibi.

          We do not understand the rule of the cases to be that the
          Commonwealth need not prove any date at all, but can
          sustain a conviction merely by proving that the offense
          must have been committed upon some unshown date within
          the statutory period. Our attention has not been called to
          any case so holding.

Devlin, 333 A.2d at 890 (internal quotations, corrections, and citations

omitted), quoting Commonwealth v. Levy, 23 A.2d 97, 99 (Pa. Super.

1941).




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      As the Devlin Court explained, the above rule of law – that the “date

of the commission of the offense must be fixed with reasonable certainty” –

is required by both the Due Process Clause of the 14 th Amendment to the

United States Constitution and Article 1, Section 9, of the Pennsylvania

Constitution. Devlin, 333 A.2d at 891. Specifically, the Devlin Court held,

the rule was required in order to protect the defendant’s “opportunity to

defend” himself and, thus, to protect the defendant’s procedural due process

rights. Id. According to the Devlin Court:

        Under the Federal Constitution, if the opportunity to defend
        is inadequate, the defendant is denied due process of law.
        While not capable of exact definition, the basic elements of
        procedural due process are adequate notice, opportunity to
        be heard, and a chance to defend one-self before a fair and
        impartial tribunal having jurisdiction of the case. In our
        adversary system of justice, it is axiomatic that a party is
        entitled to a fair hearing. The Federal Due Process Clause
        and the State “law of the land” provision guarantee the
        fundamental fairness of that hearing. To defend a charge of
        conduct occurring anywhere within a [14]-month period
        was, for this appellant, a fundamentally unfair burden

Id. (internal quotations and citations omitted) (emphasis added).

      The Devlin Court then went on to explain why, “for this appellant,” to

“defend a charge of conduct occurring anywhere within a [14]-month period

. . . was a fundamentally unfair burden.”     Id. (emphasis added).     As the

Devlin Court explained, the unreasonably large time period prejudiced Mr.

Devlin’s ability to defend himself in three ways. First, the Devlin Court held,

since “the credibility of the victim was a serious issue” at trial, the

Commonwealth’s failure to provide Mr. Devlin with “a sufficiently particular


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period of time to defend [] precluded [Mr. Devlin] from further attacking the

credibility of the victim by showing (1) behavior of the victim after the

incident which was inconsistent with the extremely severe conduct to which

the victim was allegedly subjected, and (2) the physical and emotional

trauma which would have necessarily resulted therefrom.” Id. Second, Mr.

Devlin’s    defense   was prejudiced because      the   expansive   time   frame

prevented Mr. Devlin from “attempt[ing] to prove that the victim did not

visit his house on the date in question.” Id. Finally, the Devlin Court held,

“notification of an alibi defense was a futile gesture in this case because the

date laid in the indictment was obviously an arbitrary one . . . [and] it would

have been an impossible burden for [Mr. Devlin] to offer an alibi defense for

a [14]-month period.” Id. at 892.

      The Supreme Court thus vacated Mr. Devlin’s judgment of sentence

and ordered him discharged. However, before it did so, the Devlin Court

explained that its holding was not susceptible to a per se rule. According to

the Devlin Court:

           Here, as elsewhere, [t]he pattern of due process is picked
           out in the facts and circumstances of each case. Du[e]
           process is not reducible to a mathematical formula.
           Therefore, we cannot enunciate the exact degree of
           specificity in the proof of the date of a crime which will be
           required or the amount of latitude which will be acceptable.
           Certainly the Commonwealth need not always prove a
           single specific date of the crime.             Any leeway
           permissible would vary with the nature of the crime
           and the age and condition of the victim, balanced
           against the rights of the accused.



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Id. (internal quotations and citations omitted) (emphasis added).

      Thus, in Devlin, our Supreme Court refused to adopt a per se rule

regarding the “degree of specificity in the proof of the date of a crime.” Id.

Instead, the Supreme Court “opted for a balancing approach to resolve

conflicting   interests   of    the    accused    vis-à-vis   the        victim   [and    the

Commonwealth] when it came to the specificity required to be proven as to

the time-frame of the alleged crime.” Commonwealth v. Fanelli, 547 A.2d

1201, 1204 (Pa. Super. 1988) (en banc), abrogated on other grounds by

Commonwealth v. Hutchinson, 556 A.2d 370 (Pa. 1989).

      In the case at bar, Appellant’s Devlin claim immediately fails, as

Appellant “has [not] asserted how the lack of specificity in the information or

the victim’s testimony rendered him unable to prepare a defense to the

charges brought against him.”           See Commonwealth v. Brooks, 7 A.3d

852, 860 (Pa. Super. 2010) (holding that the defendant’s Devlin claim failed

because the defendant failed to explain how he was prejudiced by the

Commonwealth’s failure to fix the date of the crime with more specificity).

Certainly, Appellant has not raised any claim or made any assertion that the

Commonwealth’s failure to prove the dates of the commission of the

offenses with greater specificity either placed an undue burden upon or

caused him to forgo any specific defense. See Appellant’s Brief at 11-18.

Therefore, since Appellant has not raised any claim of prejudice, the Devlin

balancing     test   requires   that    we   conclude    that,      in    this    case,   the

Commonwealth’s failure to prove the dates of the crimes with greater

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specificity did not violate Appellant’s due process rights and that Appellant’s

sufficiency of the evidence claim fails as a matter of law.

      Order of disposition affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2016




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