Opinion
J-A04003-19 No. 1043 EDA 2018
03-12-2019
IN THE INTEREST OF: S.P., A MINOR APPEAL OF: S.P., A MINOR
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Dispositional Order March 1, 2018
In the Court of Common Pleas of Montgomery County Juvenile Division at No(s): CP-46-JV-0000439-2016 BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
S.P., a minor, appeals from the dispositional order, entered in the Court of Common Pleas of Montgomery County, adjudicating him delinquent of involuntary deviate sexual intercourse, indecent assault, and indecent exposure. After careful review, we affirm based on the opinion authored by the Honorable Wendy Demchick-Alloy.
Around 11:00 PM on May 13, 2016, S.P. met his 15-year-old victim, A.E., and her high school classmate, E.H., at Penn Wynne Park to smoke marijuana. A.E. and E.H. smoked S.P.'s marijuana, while S.P. remained sober. Afterwards, S.P. demanded payment. When A.E. and E.H. told him they had no money, S.P. suggested compensation in the form of sexual gratification. E.H. refused and physically distanced herself. S.P. grabbed A.E. and told E.H. to give them privacy. Once E.H. walked away, S.P. proceeded to forcefully touch A.E.'s buttocks, put his hand inside A.E.'s leggings, and rub A.E.'s genitals. S.P. then exposed his penis, grabbed A.E.'s neck, and demanded oral sex. A.E. repeatedly refused S.P.'s advances. After E.H. returned, A.E. managed to free herself of S.P.'s grip and leave with E.H.
At trial, in addition to the testimony of A.E. and E.H., the Commonwealth offered into evidence video surveillance confirming S.P., A.E. and E.H. were present at Penn Wynne Park. This video was time-stamped, indicating the assault took place between 11:28 PM and 11:36 PM. S.P. introduced text messages sent between A.E. and her mother at 11:30:38 PM, 11:31:34 PM, and 11:37:37 PM, arguing the time stamps indicated A.E. was texting her mother at the same time she claimed to have been sexually assaulted. On June 17, 2016 the juvenile court adjudicated S.P. delinquent. On July 6, 2016, the juvenile court held a dispositional hearing and placed S.P. on probation until further order. S.P. did not file a post-dispositional motion pursuant to Pa.R.J.C.P. 620, but filed a timely appeal. Both S.P. and the juvenile court complied with Pa.R.A.P. 1925.
In his appeal, S.P. raised one claim challenging the sufficiency of the evidence, one evidentiary claim, and five claims challenging the weight of the evidence. In the Interest of S.P., 2508 EDA 2016, at 2-3 (Pa. Super. September 21, 2017) (unpublished memorandum). This Court deemed his sufficiency and evidentiary claims waived, but remanded the case to give S.P. an opportunity to file a post-dispositional motion nunc pro tunc so the juvenile court could render a specific ruling as to S.P.'s challenges to the weight of the evidence. Id. at 6. S.P. filed a post-dispositional motion, which Judge Demchick-Alloy denied in its entirety.
This timely appeal follows, in which S.P. raises the following claims for our review:
1. Was the evidence insufficient to find that the defendant committed the crimes of [involuntary deviate sexual intercourse, indecent assault, and indecent exposure]?Brief of Appellant, at 4.
2. Did the trial 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 the victim and her mother indicating that the victim was texting her mother at the time of the alleged assault?
3. Did the trial court abuse its discretion by not giving the defendant's character evidence sufficient weight?
We begin by noting this Court expressly stated S.P. waived his sufficiency claim, remanding the case solely to develop S.P.'s claims as to the weight of the evidence. In the Interest of S.P., supra , at 8 ("[W]e conclude [S.P.] waived his challenges to the sufficiency of the evidence. . . . We remand for further proceedings limited to [S.P.'s] challenge to the weight of the evidence.") (citing In the Interest of J.B. 106 A.3d 76, 95-6 (Pa. 2014) (holding juvenile's weight of evidence claim not waived when not raised in post-disposition motion but raised in statement of matters complained of on appeal and ruled on by trial court)). According to the law of the case, we are consequently precluded from revisiting S.P.'s sufficiency claim. See Commonwealth v. Paddy , 800 A.2d 294, 311 (Pa. 2002) ("[A] court acting at a later stage of a case should not reopen questions decided at an earlier stage by another judge of the same court or a higher court.").
S.P.'s second and third claims challenge the weight of the evidence. When challenging the weight of the evidence, relief in the form of a new trial may be granted only where the verdict shocks one's sense of justice. Commonwealth v. Champney , 832 A.2d 403, 408 (Pa. 2003) (citation omitted). Where the trial court has ruled on a weight claim, our review is limited to determining whether the trial court "palpably abused its discretion in ruling on the weight claim." Id. It is not our role, as a reviewing court, to reweigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Mitchell , 902 A.2d 430, 449 (Pa. 2006).
In her opinion dated May 9, 2018, Judge Demchick-Alloy concluded that all of S.P.'s appellate issues were without merit. Specifically, the court found: (1) A.E., and E.H. testified credibly as to S.P.'s actions; (2) E.H.'s testimony corroborated A.E.'s version of events and vice versa; (3) the evidence did not support an inference A.E. was motivated to lie; (4) as no evidence suggests the time data retrieved from the text messages and the video recording were synchronized to a common reference point, the data are of no probative value in proving the absence of sexual contact or impugning A.E.'s credibility; (5) A.E. promptly reported S.P.'s assault; and (6) the trial court, as the finder of fact, properly accorded S.P.'s character witnesses less weight than the credible evidence proving his delinquent acts beyond a reasonable doubt. Trial Court Opinion 5/9/18, at 4-23.
After reviewing the parties' briefs, the certified record, the issues raised on appeal, and relevant case law, we conclude that the trial court opinion, authored by Judge Wendy Demchick-Alloy, thoroughly addresses the weight claims raised on appeal by S.P. We, therefore, rely upon Judge Demchick-Alloy's decision in affirming the dispositional order adjudicating S.P. delinquent. The parties are directed to attach a copy of Judge Demchick-Alloy's decision in the event of further proceedings in this matter.
Order affirmed.
Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/12/19
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