In the Interest of: J.J.D., a Minor ( 2016 )

J-S56033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.J.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.J.D.
No. 200 MDA 2016
Appeal from the Dispositional Order November 25, 2015
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-JV-0000374-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 19, 2016
J.J.D. (“Appellant”) appeals from the dispositional order entered by the
Court of Common Pleas of Lancaster County, Juvenile Division, after the
court adjudicated Appellant delinquent for committing an act that would
constitute theft by unlawful taking if he were an adult. Appellant presents a
challenge to the weight of the evidence centered on a discrepancy between
the arresting officer’s written report and his oral testimony. We affirm.
The lower court aptly summarizes the factual and procedural history as
follows:
At the time of the adjudicatory hearing, [Appellant] was 18 years
old. On or about May 6, 2015, the Victim and [Appellant] were
at the park. According to the Victim, [Appellant] was “doing
drugs,” and, because she did not want to be involved with that
activity, she decided to go home. Uninvited, [Appellant]
followed her home and into her residence despite her telling him
that she did not want him there. Upon entering her home,
[Appellant] went straight to the bathroom and locked the door
*Former Justice specially assigned to the Superior Court.
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where the Victim believes he continued to use drugs.
[Appellant] then exited the bathroom and laid on the living room
floor. At this point, the Victim said she became scared that he
was dying and called 911; however, she hung up before
speaking to anyone. 911 dispatch then called the Victim’s home,
but she did not answer the phone out of fear. Meanwhile,
[Appellant] entered and left the bathroom several times. The
Victim then grabbed the phone and locked herself in her
bedroom where she proceeded to call her mother. Shortly
thereafter, her father called her, and she told him that she was
scared and that [Appellant] would not leave the house.
Approximately 5 to 10 minutes later, she received a phone call
and was told that [Appellant] was outside with police officers and
that she was safe. A police officer then approached her as she
exited the house[,] handed her a Samsung Galaxy 3 Tablet, and
asked “is this yours.” She indicated that it was, and the officer
informed her that he had retrieved it from [Appellant]. She in
turn indicated that [Appellant] did not have permission to take
her tablet. (Adjudication, N.T. 10/5/16 at 5-13).
Officer Jesse James Blank of the Southern Regional Police
Department testified that he was dispatched to the Victim’s
address for a 911 hang-up call. Upon his arrival approximately
10 minutes later, he encountered [Appellant] exiting the home
via the front door. He further testified that [Appellant], who was
breathing heavily, indicated that this was the home of his
girlfriend and that they were fighting. Officer Blank noticed a
bulge at [Appellant’s] right hip, and, being concerned that it
might be a weapon, the Officer asked him to lift his shirt,
revealing the Victim’s Samsung Galaxy 3 Tablet. Upon learning
from the Victim that [Appellant] did not have permission to take
her tablet, Officer Blank charged [Appellant] with one count [of]
Theft by Unlawful Taking (Id. at 14-17), and, following the
adjudicatory hearing held on October 8, 2015, he was
adjudicated delinquent of the offense. (Id. at 27).
***
On cross-examination, counsel for [Appellant] questioned Officer
Blank regarding the fact that he did not specifically indicate in
his report that he had asked [Appellant] to lift his shirt. The
officer acknowledged this fact, along with the fact that his report
indicated that [Appellant] lifted his shirt, reached for the tablet
and gave it to the officer. He also acknowledges that [Appellant]
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stated that “his girlfriend had given it to him to hold on to.” (Id.
at 19).
***
[The court adjudicated Appellant delinquent and, at a disposition
hearing held on November 25, 2015, issued an order directing
Appellant] to complete the Youth Advocate Program, participate
in drug and alcohol services, complete 30 hours of community
service, participate in the Center for Community Peacemaking
program and pay court costs. (Disposition Order, 11/25/15).
Lower Court Opinion, filed March 29, 2016 at 1-3.
Appellant presents one question for our review in this timely appeal:
WAS THE [JUVENILE] COURT’S FINDING THAT [APPELLANT]
COMMITTED THE OFFENSE OF THEFT BY UNLAWFUL TAKING
AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE
EVIDENCE SHOWED CONFLICTING ISSUES REGARDING INTENT,
IN THAT THE OFFICER WROTE IN HIS REPORT THAT
[APPELLANT] TURNED THE STOLEN ITEMS OVER TO HIM AS HE
EXITED THE HOME BUT TESTIFIED THAT HE STOPPED
[APPELLANT] AS HE EXITED THE HOME AND DISCOVERED
[APPELLANT] WAS IN POSSESSION OF A STOLEN ITEM?
Appellant’s brief at 5.
Our review of a weight claim in an appeal from a juvenile adjudication
is the same as our review of a challenge to the weight of the evidence in an
appeal from a criminal conviction:
[W]e may only reverse the [juvenile] court's [adjudication of
delinquency] if it is so contrary to the evidence as to shock one's
sense of justice. Moreover, where the [ ] court has ruled on the
weight claim below, an appellate court's role is not to consider
the underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited to
whether the [juvenile] court palpably abused its discretion in
ruling on the weight claim.
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Hence, a [juvenile] court's denial of a weight claim is the least
assailable of its rulings. Conflicts in the evidence and
contradictions in the testimony of any witnesses are for the fact
finder to resolve.
In re J.M., 89 A.3d 688, 692 (Pa.Super. 2014) (citation omitted), appeal
denied, 102 A.3d 986 (Pa. 2014).
Appellant assails the juvenile court’s ruling on his weight of the
evidence claim filed in his post-dispositional motion because, he claims, the
officer’s testimony that he directed Appellant to lift his shirt departed from
his written report, which contained no reference to such a directive. This
variation between the officer’s written report and his testimony, Appellant
maintains, undermined the officer’s credibility as a witness. We disagree.
Though the written report did not state that the officer directed
Appellant to lift his shirt to reveal what he was hiding underneath, it
nevertheless stated that Appellant lifted his shirt in the officer’s presence,
surrendered the tablet to the officer, and explained that the Victim, “his
girlfriend,” had given it to him. It further stated that the Victim denied
giving Appellant permission to take the tablet. Though not identically
worded, the officer’s written report and testimony were substantially
consistent in all meaningful respects and, importantly, not contradictory. It
was, therefore, reasonable for the court to infer from the totality of the
circumstances that the officer had encountered Appellant while Appellant
was in the act of taking the Victim’s tablet without her permission.
Accordingly, we discern no abuse of discretion in the juvenile court’s denial
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of Appellant’s post-dispositional motion asserting that the weight of the
evidence belied wrongful intent.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2016
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