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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                 v.                     :
                                        :
T.J., A MINOR,                          :
                                        :
                       Appellant        :
                                        :     No. 3772 EDA 2015

          Appeal from the Dispositional Order November 17, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-JV-0000399-2015

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                           FILED MAY 19, 2017

     Appellant, T.J., appeals from the Dispositional Order entered in the

Court of Common Pleas of Delaware County following his adjudication of

delinquency based on Indecent Assault of a Person with a Mental Disability.

Upon careful review, we affirm.

     On April 27, 2015, the Commonwealth filed a Delinquency Petition

charging thirteen-year-old Appellant with multiple counts of Rape, Sexual

Assault, and Indecent Assault.1 On November 17, 2015, the juvenile court

conducted an adjudicatory hearing.

     The juvenile court summarized the testimony from the adjudicatory

hearing as follows:

1
 18 Pa.C.S. § 3121(a)(1) and (5); 18 Pa.C.S. § 3124.1; and 18 Pa.C.S. §
3126(a)(1), (2), and (6), respectively.
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     The Commonwealth presented evidence from several witnesses
     that showed that [Appellant] and several other children were
     playing on a basketball court located on Clifton Avenue, Darby
     Township, Delaware County, Pennsylvania, during the late
     afternoon on April 24, 2015.

     J.J. (also referenced in the hearing as "Smiley") offered clear
     and cogent testimony of the occurrences.         Apparently, the
     [eighteen-year-old] Complainant was with a group of children
     playing tag when she and another girl departed and walked up
     Clifton Avenue. Shortly thereafter, [Appellant] and two other
     boys, J.J. and A.F. (who were among the group), walked up the
     street in the same direction as Complainant. He offered that
     when the three boys encountered Complainant, her friend
     indicated she could continue on alone. Complainant then told
     the boys that she wanted something to drink. [Appellant] told
     Complainant that she could get something at his house which
     was about two doors away. [Appellant] and the Complainant
     walked up the steps at his house and entered. After waiting for
     a bit, the other boy, A.F., knocked on the door and peered in the
     nearby window. As he looked in, he said, "She [Complainant]
     getting raped." Shortly thereafter, Complainant ran outside the
     house crying and was followed closely by A.F.

     The next witness, A.F., proved problematic for the
     Commonwealth. His direct testimony largely conveyed that he
     could recall nothing about the events on April 24th. Previous
     testimony seemingly corroborated the gist of J.J.'s rendition of
     the events.

     The Complainant's [older] sister, K.R., testified that she cares for
     [Complainant] who functions at the level of a five or six[-]year -
     old. She reported that two boys came to her home on Clifton
     Avenue and one boy offered an explanation of the events which
     caused K.R. to call the police.

     The Complainant confirmed that she lives with her sister who
     helps her. Complainant was then quizzed about the central
     events of the case. She offered an in-court identification of
     [Appellant] and said that she was inside his house alone with
     [him]. She said [Appellant] pulled her by her hoodie. When
     asked where she had "private parts," the Complainant indicated,
     appropriately, the area below her waist. She told the court that
     [Appellant] touched her private parts (which was more


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      particularly described as below her waist toward the middle of
      her pants) with his hands. She also stated that [Appellant]'s
      private part (located in the crotch area of his pants) touched her
      body, but she was unable to specify what part of her body was
      touched. The Complainant submitted herself to a sexual assault
      examination. No manifestation of injury or objective evidence of
      a rape was found. The reviewing nurse confirmed that the
      Complainant's history reflected her limited mental functioning.

Juvenile Court Opinion, filed 5/18/16, at 2-4 (unpaginated).

      At the conclusion of the hearing, the juvenile court adjudicated

Appellant delinquent on a single count of Indecent Assault of a Person with a

Mental Disability. On the same day, the juvenile court placed Appellant on

probation and restricted contact between Appellant and Complainant. This

timely appeal followed.2

      Appellant raises the following issue on appeal:

      Whether a nurse may opine that the notation “MR” on
      [Complainant]’s      admission   documents      means    “mental
      retardation,” and that [Complainant] exhibited indicia of mental
      retardation, and whether the Juvenile Court erred when it
      accepted the nurse’s and other lay opinion as proof beyond a
      reasonable doubt that 18-year-old [Complainant] suffered from
      a mental disability that prevented her from giving consent?

Appellant’s Brief at 9.

      Appellant   essentially   argues   that   the   Commonwealth   presented

insufficient evidence to prove that Complainant suffered from a mental



2
  On December 11, 2015, Appellant filed a Notice of Appeal. The juvenile
court did not order Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). The juvenile court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on May 17, 2016.



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disability that prevented her from giving consent, and therefore insufficient

evidence to support the adjudication. Our standard of review is as follows:

     In reviewing the sufficiency of the evidence to support the
     adjudication below, we recognize that the Due Process Clause of
     the United States Constitution requires proof “beyond a
     reasonable doubt” at the adjudication stage when a juvenile is
     charged with an act which would constitute a crime if committed
     by an adult. Additionally, we recognize that in reviewing the
     sufficiency of the evidence to support the adjudication of
     delinquency, just as in reviewing the sufficiency of the evidence
     to sustain a conviction, though we review the entire record, we
     must view the evidence in the light most favorable to the
     Commonwealth.

In re A.D., 771 A.2d 45, 48 (Pa. Super. 2001) (internal citations omitted).

     The crime of Indecent Assault is defined, in pertinent 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:

     ***
     (6) the complainant suffers from a mental disability which
     renders the complainant incapable of consent[.]

18 Pa.C.S. § 3126(a)(6). Further, the term “indecent contact” is defined by

statute 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.

     In the instant case, Appellant solely challenges whether there was

sufficient evidence to prove that Complainant “suffers from a mental

disability which renders the complainant incapable of consent[.]” 18 Pa.C.S.


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§ 3126(a)(6).    Appellant avers that Complainant’s older sister and legal

guardian, K.R., the examining nurse, Dawn Tierney (“Nurse Tierney”), and

Detective Cory Cooper (“Detective Cooper”) all lacked qualifications to

support their opinions regarding Complainant’s mental status.      Appellant’s

Brief at 16. We disagree.

      In Commonwealth v. Crosby, 791 A.2d 366 (Pa. Super. 2002), this

Court held that testimony from a victim’s mother was sufficient to prove that

the victim had mental disability. Id. at 370. Likewise, in Commonwealth

v. Provenzano, 50 A.3d 148 (Pa. Super. 2012), this Court held that

testimony from a 15-year-old victim’s “life skills” teacher that the victim had

a low IQ and the decision-making capacity of an elementary school student

was sufficient to raise the issue of the victim’s mental capacity for the fact-

finder to decide. Id. at 152. Notably, in Provenzano, this Court factored

into its analysis that the defendant did not present any evidence to rebut the

testimony that the victim lacked the mental capacity to consent to sexual

contact. Id.

      In both Crosby and Provenzano, this Court permitted lay testimony

to establish whether a victim suffers from a mental disability which renders

them incapable of consent pursuant to 18 Pa.C.S. § 3126(a)(6).            See

Crosby, supra at 370; Provenzano, supra at 152.

      Similarly, in this case, Complainant’s sister and legal guardian, K.R.,

testified at length about Complainant’s mental capacity. K.R. testified that



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Complainant was “mentally challenged[,]” was diagnosed as autistic,

attended a specialized school, was unable to drive a car, could not read, was

able to recite the alphabet and count to twenty, was able to write her name,

and “has the mind of like a four or five year old.” N.T. Adjudicatory Hearing,

11/17/15, at 98-101. Appellant failed to present any evidence to rebut this.

In fact, when Appellant was asked, “tell me what you know about

[Complainant],” he responded, “I know that she got some issues and stuff . .

. like she’s mentally challenged.” Id. at 200-01.

      The juvenile court opined, “[t]he record, provided by Complainant’s

sister, offers sufficient grounds to support a finding of her mental

impairment.” Juvenile Court Opinion, filed 5/18/16, at 6. We agree with the

juvenile court that the evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to establish beyond a reasonable doubt that

Complainant suffered from a mental disability that rendered her incapable of

consent. See In re A.D., supra at 48.

      Appellant also argues that Nurse Tierney and Detective Cooper were

unqualified to render an opinion regarding Complainant’s mental capacity.

As   stated   above,   the   juvenile   court   based   its   decision   regarding

Complainant’s mental status solely on the testimony provided by K.R. See

Juvenile Court Opinion, filed 5/18/16, at 6. Accordingly, this argument lacks

merit.




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      Lastly, Appellant curiously raises the issue of “whether a nurse may

opine that the notation ‘MR’ on [Complainant]’s admission documents means

‘mental retardation[.]’” Appellant’s Brief at 9. Nurse Tierney testified that

she, herself, wrote “MR” on the admission documents based on “the person

who was with the client and the history that they gave me.”              N.T.

Adjudicatory Hearing, 11/17/15, at 144-45, 148. Accordingly, Nurse Tierney

was merely testifying as to what the acronym that she transcribed meant.

We find this issue to be nonsensical and meritless.

      Based on the foregoing, we find that the Commonwealth presented

sufficient evidence to prove that Complainant suffered from a mental

disability that rendered her incapable of consent, and that the juvenile court

did not abuse its discretion when it adjudicated Appellant delinquent.

      Dispositional Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2017




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