J-S52011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.A.D.-B., A             IN THE SUPERIOR COURT OF
    MINOR                                              PENNSYLVANIA

    APPEAL OF: J.A.D.-B., A MINOR
                                                      No. 195 MDA 2018


          Appeal from the Dispositional Order Entered January 9, 2018
                In the Court of Common Pleas of Centre County
              Juvenile Division at No(s): CP-14-JV-0000070-2017


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER,*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 22, 2018

        Appellant, J.A.D.-B., a minor, appeals from the dispositional order

entered on January 9, 2018, after he was adjudicated delinquent of

aggravated assault, simple assault, and recklessly endangering another

person. We affirm.

        Briefly, Appellant’s adjudication of delinquency stemmed from an

altercation between Appellant and another juvenile, J.F., during which

Appellant shot J.F. six times with a BB gun. The pellets struck J.F. in the

chest, cheek, temple, and right eye, causing him severe injuries including

permanent loss of vision in his right eye.       After hearings conducted on

December 13, 2017, and January 5, 2018, the juvenile court adjudicated

Appellant delinquent of the above-stated offenses. At a dispositional hearing


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S52011-16



held on January 5, 2018, the court ordered that Appellant be placed in George

Junior Republic Diagnostic Program.1

       Appellant filed a timely notice of appeal, and he also timely complied

with the juvenile court’s order to file a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal. On May 2, 2018, the court issued a Rule

1925(a) opinion. Herein, Appellant presents the following two issues for our

review:
      I.      Did the [juvenile] [c]ourt improperly find that [Appellant]
              did not act in self-defense before adjudicating him
              delinquent of the offenses of [a]ggravated and [s]imple
              assault?

       II.    Did the [juvenile] [c]ourt abuse it’s [sic] discretion by
              placing the juvenile at George [Junior] Republic Diagnostic
              Program, rather than continuing him on the least restrictive
              alternative of remaining with his family on either [the]
              Electronic Monitoring Program, or on Probation[,] where he
              had done well for over two months?

Appellant’s Brief at 7.

       Preliminarily, we note that “[t]he Juvenile Act grants broad discretion to

juvenile courts, and we will not disturb the lower court’s disposition absent a

manifest abuse of discretion.” In Interest of N.C., 171 A.3d 275, 280 (Pa.

Super. 2017) (citing In re C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014), and

In the Interest of J.D., 798 A.2d 210, 213 (Pa. Super. 2002)).

       Here, we have reviewed the certified record, the briefs of the parties,

and the applicable law.        Additionally, we have reviewed the thorough and
____________________________________________


1 Appellant was evaluated in that program, and after the court conducted
another hearing on April 6, 2018, it issued an order placing Appellant in
George Junior’s Special Needs Program.

                                           -2-
J-S52011-16



articulate opinion of the Honorable Katherine V. Oliver of the Court of Common

Pleas of Centre County.    We conclude that Judge Oliver’s extensive, well-

reasoned opinion accurately disposes of the issues presented by Appellant.

Accordingly, we adopt Judge Oliver’s opinion as our own and affirm the

dispositional order on that basis.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2018




                                     -3-
                                                                                              Circulated 10/02/2018 10:18 AM




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      IN THE COURT OF COMMON PLEAS, CENTRE COUNTY, PENNSYLVANIA
                          JUVENILE DIVISION

 IN THE INTEREST OF:

 J.A.D.B.                                                               CP" 14-JV-70-2017




Attorneyfor the Commonwealth:                                          Amanda Chaplain, Esq.
Attorney for the Defendant:                                            Parvis Ansari, Esq.

Oliver, J.

                                               192S(a) OPINION

             After hearings conducted on December 13, 2017 and January 5, 2018, Juvenile J.A.D.B.

was adjudicated delinquent on charges of aggravated assault, 18 Pa.C.S.A. § 2702(a)(l), simple

assault, 18 Pa.C.S.A. § 2701(a)(l) and 270l(a)(3), and recklessly endangering another person, 18

Pa.C.S.A. § 2705. Following a disposition hearing on January 5, 2018, the Court determined that

placement at George Junior Republic was the least restrictive placement both consistent with the

protection of the public and best suited to J.A.D.B.'s treatment, supervision, rehabilitation and

welfare. The Court entered an adjudication and dispositional Order that same date.1

         J.A.D.B. filed a Notice of Appeal to the Superior Court on January 26, 2018. The Court

issued an Order directing J.A.D.B. to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b). J.A.D.B. filed a timely 1925(b) statement on February 16, 2018.

The Court issues this opinion in accordance with Pa.R.A.P. 1925(a).

         I
          The Court's January 5, 2018 Order, (filed of record January 8, 2018), directed placement at George Junior
Republic's Diagnostic Program, which the Court concluded was necessary as an initial step for appropriate
evaluation and assessment to determine the most appropriate program at George Junior Republic for J.A.D.B. That
Order was amended to change the placement date to January 9, 2018. The evaluation and assessment was
subsequently completed, and a hearing was held on April 6, 2018, at which time the Court entered an Order
designating placement in George Junior's Special Needs Program.

00 DRDIS
                                                                                        '1\�---.:1.!.--                 �
         In his 1925(b) statement, J.A.D.B. challenges the Court's rejection of his self-defense

argument in adjudicating J.A.D.B. delinquent on the aggravated assault and simple assault

charges. In addition, J.A.D.B. contends the Court abused its discretion by placing him at George

Junior Republic rather than ordering that he remain in the care of his family on electronic

monitoring or standard probation. These issues are addressed below.

        Delinquency Adjudication on Assault Charges

        J.A.D.B. challenges the Court's determination of delinquency as to the assault charges in

this case. A person who attempts to cause or intentionally, knowingly or recklessly causes

bodily injury to another commits the crime of simple assault. See 18 Pa. C.S.A. § 2701(a)(1);

Commonwealth v. Torres, 766 A.2d 342, 344 (Pa. 2001). Simple assault is also committed

when an actor attempts through physical menace to_ put another person in fear of imminent

serious bodily injury. 18 Pa. C.S.A. § 270l(a)(3). Under the Crimes Code, a person is guilty of

aggravated assault when he:

                 (1) attempts to cause serious bodily injury to another, or causes
                such injury intentionally, knowingly or recklessly under
                circumstances manifesting extreme indifference to the value of
                human life ...

18 Pa. C.S.A. § 2702(a)(l).

        An actor may avoid criminal liability for assault by application of the defense of

justification, or self-defense, when there is sufficient evidence to justify a finding of self-defense.

See Torres, supra, at 345. The affirmative defense of self-defense is codified in section 505 of

the Crimes Code. See 18 Pa.C.S.A. § 505. Under section 505, the use of force toward another

person is justifiable "when the actor believes that such force is immediately necessary for the

purpose of protecting himself against the use of unlawful force by such other person on the

present occasion." Id. The use of excessive force, however, is not justifiable in the eyes of the

                                                  2
                                                                                   Appendix D-1
 law. See e.g., Commonwealth v. Cutts, 421 A.2d 1172 (Pa. Super. 1980); Commonwealth v.

 Jones, 332 A.2d 464 (Pa. Super. 1974). See also Commonwealth v. Witherspoon, 730 A.2d 496,

 499 (Pa. Super. 1999) (in mere battery cases, "force may be met with force so long as it is only

 force enough to repel the attack")(quoting Commonwealth v. Pollini, 467 A.2d 1298 (Pa. 1983)).

 When self-defense is asserted by a defendant, the Commonwealth bears the burden of disproving

 the defense beyond a reasonable. doubt. Commonwealth v. Torres, 766 A.2d at 345.

        In the case at bar, the Court determined that J.A.D.B. sufficiently raised the issue of self-

 defense, or justification, to place the defense at issue. On consideration of the evidence, overall,

however, the Court concluded that the Commonwealth met its burden of proving, beyond a

reasonable doubt, that J.A.D.B. had committed the delinquent acts charged.

        The incident giving rise to this case occurred on October 13, 2017. On that date,

J.A.D.B. shot the victim, J.F., six times at close range with a BB gun, hitting him in the chest,

cheek, temple and right eye. (See Tr. Adj. Hr'g., Dec. 13, 2017, at 7-20). The shooting incident

occurred in the street near a high school football stadium crowded with students, parents,

security officers and others while the football game was taking place. Both J.A.D.B. and J.F.

were attending the football game that evening, although not together. J.F. was seriously injured

as a result of being shot. Among other injuries, J.F. suffered permanent loss of vision in his right

eye, and testimony established that he could eventually lose the eye altogether. (Id at 26-29).

       At the time of the incident, J.A.D.B. and J.F. were acquaintances, and had engaged in

consensual boxing or wrestling-type activities after a high school football game on another

occasion about two weeks before. The evidence also established that, earlier on the evening of

the shooting incident, J.F. asked J.A.D.B. if he wanted to engage in consensual fighting, and

J.A.D.B. said no and walked away. J.F. believed J.A.D.B. made some remark as he walked



                                                 3                                  Appendix D-2.
 away to the effect that something would happen later, although his testimony on that point was

 not clear. (Id at 31-33). J.F. testified he later learned that J.A.D.B. was mad at him, so he went

 to find him to talk to him. (Id. at 8-9, 33-34). On finding J.A.D.B. in a parking lot not far from

the football stadium, J.F. tried to talk to him, but J.A.D.B. cut him off, claiming that J.F. had

called him names and asking if he wanted to fight him. J.F. denied the name calling and said he

did not want to fight. J.F. testified that J.A.D.B. appeared angry during this exchange, and that

J.A.D.B. lifted his sweatshirt and pointed to his waistband, as ifhe was concealing something

there. (Id. at 9-11, 33-34). J.F. could not see whether J.A.D.B., in fact, had anything in his

waistband, but he felt threatened and nervous. (Id at 10).

        J.P. testified that J.A.D.B. took a step or two away, and then stepped toward him and

grabbed a gold chain J.P. was wearing, ripping it off of his neck. (Id at 10). J.A.D.B. started

running with the necklace in his hand. J.F., agitated, took a few steps after him, and J.AD.B.

started shooting him with the BB gun, first in the chest, and then in the face. (Id at 16-18, 35-

36). J.F. estimated he was one to two feet from J.A.D.B. when the first shot struck him. He was

shot six times. Because he was slowed by the bullets, he estimated he was approximately five to

six feet from J.A.D.B. when he was struck in the eye. J.A.D.B. ran off after firing the shots. (Id.

at 14). J .F. testified that another friend, over the age of eighteen, was with him when he initially

approached J.A.D.B. Although there were other people around, he had not noticed anyone else

beside him because he was not paying attention to them. (Id at 19).

       J.A.D.B. testified to a different account of the events immediately before the shooting.

According to J.A.D.B., J.F. approached him with a group of other kids and J.F.'s adult friend,

and an argument between J.A.D.B. and J.F. ensued. (See Tr. Adj. Hr'g., Dec. 13, 2017, at 87-

88). J.A.D.B. testified that J.F. started moving closer to him, calling him vulgar names. J.F. got


                                                 4                      Appendix D-3
close to his face, and J.A.D.B. pushed him back, asking him to back up and saying he had a BB

gun. (Id. at 88). According to J.A.D.B., J.F. looked at his older friend and then pushed J.A.D.B.,

and it was at that point that J.A.D.B. pulled the chain off J.F. 's neck. He testified that J.F. then

cocked his hand back and ran after him, and it was then that J.A.D.B. fired the first shot. (Id. at

88-89). According to J.A.D.B., J.P. stopped completely for a moment after the first shot was

fired, and then ran full speed at J.A.D.B. J.A.D.B. contends he backed up and fired the

remaining five shots, although he says he did not even know how many shots he fired until he

was told about it later. (Id. at 90). J.A.D.B. had "Snap Char communication with two friends

fairly immediately after the shooting, stating he had done something bad and regretted it, and

making various references to suicide as a means of getting himself out of the situation. (Id. at

57-61).

          Counsel for J.A.D.B. elicited testimony from J.P. regarding two incidents in which J.P.

was involved in fighting with a friend of J.A.D.B. 's, arguing that J.A.D.B/s awareness of these

incidents bolstered his argument that J.A.D.B. was afraid of J.P. and was justified in repeatedly

shooting him with the BB gun on the night of the incident. (Id. at 36-42). There was also

testimony that J.F. had a reputation for bullying. (Id. at 81-83).

          The Court found J.F. 's testimony regarding the events of the night in question credible.

By contrast, there were various inconsistencies in J.A.D.B. 's testimony about the sequence of

events that made his theory that J.F. was the aggressor in the situation, and that his own actions

were defensive in nature, difficult to accept. For example, J.A.D.B. 's testimony regarding who

initiated the pushing changed throughout the course of even his direct testimony. (See id at 88).

In addition, although J.A.D.B. initially testified that J.F. pushed him before J.D.B.A. fired the

first shot, (id. at 88-89), he later stated that J.F. had not touched him before he shot J .F. (Id. at



                                                    5                         Appendix D-4
 97). He subsequently stated a second time that J.F. pushed him first and he retaliated. (See id. at

97-98). In connection with that testimony, J.A.D.B. added, for the first time, that J.F. told him

he was going to beat him up. (Id. at 98.) J.A.D.B. testified that he was not afraid of J.F. that

evening, but that he did feel intimidated. (Id. at 97-99).

        Given the overall credibility of both witnesses' testimony, and the inconsistencies in

J.A.D.B. 's testimony, the Court accepted the testimony of J.F., and not the account given by

J.A.D.B., as to how the events unfolded on October 13, 2017. In addition, and perhaps more

significantly to the issue at hand, the Court concluded that J.A.D.B. 's use of the BB gun, and his

shooting J.F. six times with the gun at close range was excessive force under the circumstances

in any event, and thus, was not justified. Accordingly, the Court concluded that the

Commonwealth met its burden of disproving the justification theory and proving its case beyond

a reasonable doubt. The Court believes this conclusion was appropriate based on the evidence

presented and the relative credibility of the testimony.

        Disposition - Out-of-home placement

        In determining the disposition for a delinquent juvenile, courts must consider the

protection of the public interest and the juvenile's needs in terms of treatment, rehabilitation,

supervision and welfare. See 42 Pa. C.S.A § 6352(a). The disposition must be tailored to the

individual circumstances of the case, and must provide "balanced attention to the protection of

the community, the imposition of accountability for the offenses committed and the development

of competencies" so the juvenile can become a responsible and productive community member.

Id. Among the many disposition alternatives, the court may make a disposition order that

commits the juvenile to out-of-home placement, provided that such an alternative is found to be

the least restrictive alternative consistent with the protection of the public, the imposition of


                                                  6                             Appendix D-5
    accountability and the rehabilitative needs of the juvenile. Id. § 6352(a)(3); see also 42 Pa.C.S. §

    6301.

            In the case at bar, the Court held a disposition hearing on January 5, 2018. (See Tr. Disp.

Hr'g., Jan. 5, 2018). In addition to the record as developed at the adjudication hearing, the Court

had the benefit of a juvenile assessment report, ("JAR"), prepared by the Centre County

Probation and Parole Department, and testimony was presented by J.F., J.F.'s mother, J.A.D,B.'s

mother, and a representative from Family Intervention Crisis Services, a family service agency

that has worked with J.A.D.B. 's family providing services beginning approximately eight

months before the incident giving rise to this matter. (Id.). The JAR score overall is listed as

"moderate," with the risk level in the categories of family circumstances/home environment,

education, peer relations, leisure/recreation, personality/behavior, and attitudes/orientation all

listed as "moderate." The JAR identified psychological and/or psychiatric needs that were not

being fully addressed or met. In addition, by J.A.D.B. 'sown report, he struggles with how to

deal with frustration, and reacts physically to frustration.2 Significant concerns regarding

J.A.D.B.>s decision-making, problem solving skills, lack of supervision, academic

underachievement and peer relation issues were all identified in the JAR.

            Based on the information in the JAR and the testimony and statements at the disposition

hearing, and also on the evidence pertaining to the assault at issue (including the fact that

J.A,D,B., a 14 year-old child, was at a high school football game without any supervision and

carrying a BB gun), the Court determined that J.A.D.B. is lacking supervision needed for his

healthy, appropriate growth and development, as well as for his overall emotional and physical

wellbeing, and that the lack of supervision is harmful to his best interests and poses a danger to

the community. The Court also concluded that neither J.A.D.B. nor his family appreciate the
2   The Court found this to be demonstrated by J.A.D.B.'s conduct on the night of October 13, 2017.

                                                          7
                                                                                 Appendix D-6
seriousness of J.A.D.B. 's delinquent acts and the gravity of the harm caused by his conduct.

Further, although there was some expression of remorse, J.A.D.B. has not acknowledged or

accepted accountability for his actions or demonstrated any understanding of his ability to

control the choices he makes.

        The Court further notes that, while on electronic monitoring awaiting his adjudication

hearing, J.A.D.B.'s mother took him out of the county to visit family in Philadelphia without first

obtaining permission from the juvenile probation department, despite the fact that such

permission was required as a condition of the electronic monitoring program. Although these

circumstances are not attributable to J.A.D.B. 's conduct and choices, they speak to the

supervision deficiency, the failure of the family to appreciate the gravity of the present

circumstances and J.A.D.B. 's needs, and a present inability to provide needed guidance, structure

and supervision required for J.A.D.B.'s development of skills to help him become a productive

member of the community and avoid further delinquent behavior.

       In addition to the above, at the disposition hearing, the Commonwealth presented

summary information for the benefit of the Court and J.A.D.B. and his family regarding the

programs and services offered at George Junior Republic. In addition to services that include

assessment and treatment/services for medical, psychiatric and psychological, social, behavioral,

and educational needs, George Junior Republic encourages regular contact and communication

between youth and family members and promotes reunification of families through regular

contact and visitation and family therapy when appropriate. (Id. at 11-13).

       Given all of these factors, the Court concluded that in-home supervision, whether on

electronic monitoring or on standard probation, would not be consistent with either J.A.D.B.'s

needs or the protection of the community at this time. The Court further determined that the



                                                 8                   Appendix D-7
                   �   .   .   . . .. ..,_
                                  .,_        ,   . . . ''. - �   ·..




services available at George Junior Republic are well matched to J.A.D.B. 's treatment and

rehabilitation needs and will promote family participation, thereby enhancing the likelihood of

enduring success for J.A.D.B. Accordingly, the Court found that placement in George Junior

Republic is the least restrictive alternative consistent with the protection of the public, with the

imposition of accountability, and with J.A.D.B. 's rehabilitative needs. The Court's reasons for

the disposition were sununarized on record at the January 5, 2018 disposition hearing. (See id at

48-57).

                                                                       BY THE COURT:


Date:   Mt!0f t-1 2018




                                                                                       Appendix D-8
                                                                        9
