In the Interest of: N.C., a minor, Appeal of N.C. , 171 A.3d 275 ( 2017 )

J-A16039-17
2017 PA Super 299IN THE INTEREST OF: N.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: N.C. : No. 1634 WDA 2016
Appeal from the Dispositional Order September 7, 2016
in the Court of Common Pleas of Clearfield County
Juvenile Division at No(s): CP-17-JV-0000071-2012
CP-17-JV-0000036-2016
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER,* J.
OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 18, 2017
N.C. (Appellant) appeals from the dispositional order1 entered on
September 7, 2016, following his adjudication of delinquency for indecent
assault person less than 13 years of age, 18 Pa.C.S. § 3126 (indecent
1
Appellant purports to appeal from the September 26, 2016 order
denying his post-dispositional motion. However, “[i]n juvenile proceedings,
the final order from which a direct appeal may be taken is the order of
disposition, entered after the juvenile is adjudicated delinquent.”
Commonwealth v. S.F., 912 A.2d 887, 889 (Pa. Super. 2006)
(unnecessary capitalization omitted). We have amended the caption
accordingly.
Also, although the caption of the September 26, 2016 order indicates
that the case is docketed in the criminal division of the Court of Common
Pleas of Clearfield County, the August 18, 2016 adjudicatory/dispositional
order indicates the case is docketed in the juvenile division. We have
amended the caption accordingly.
Finally, the August 18, 2016 adjudicatory/dispositional order is
docketed at docket number CP-17-JV-0000036-2016, which was later
consolidated with docket number CP-17-JV-0000071-2012. We have
amended the caption to add docket number 36-2016.
*Retired Senior Judge assigned to the Superior Court.
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assault). We vacate the dispositional order and reverse the adjudication of
delinquency.
In February 2012, a petition was filed alleging that then 14-year-old
Appellant was a delinquent child because Appellant touched a three-year-old
in the genital area, which constituted aggravated indecent assault (a felony)
and indecent assault (a misdemeanor). Deliquency Petition, 2/21/2012, at
1-2. In May 2012, after a contested hearing, the juvenile court in Jefferson
County determined that Appellant had engaged in a delinquent act
constituting aggravated indecent assault. Order, 5/11/2012. Because
Appellant resided in Clearfield County, the case was transferred to the
juvenile court in Clearfield County for adjudication and disposition. Id. In
July 2012, the juvenile court in Clearfield County adjudicated Appellant
delinquent of one count of aggravated indecent assault, and ordered
Appellant to be placed on probation for one year, which was to run
consecutively to a probation violation disposition imposed in a separate
matter. Order, 7/19/2012.
Appellant appealed the disposition to this Court, arguing that the
juvenile court erred by admitting recorded statements by the child-victim
into evidence during the adjudicatory hearing. This Court agreed, holding
that admission of the statements violated Appellant’s right to confrontation
provided by the Sixth Amendment to the United States Constitution. In re
N.C., 74 A.3d 271 (Pa. Super. 2013). We vacated Appellant’s disposition
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and remanded for a new adjudication, and our holding was later affirmed on
appeal. In re N.C., 103 A.3d 1199 (Pa. 2014).
As part of the disposition of Appellant’s probation violation, which
related to Appellant’s engaging in harassment by communication stemming
from “sexting” girls at his school, the juvenile court placed Appellant at
Appalachian Youth Services (AYS) in July 2012.2 Juvenile Court Opinion,
11/28/2016, at 1. While his appeal was pending, Appellant received sexual
offender treatment at AYS. Id. After Appellant was discharged from AYS to
the care of his mother, the juvenile court ordered Appellant to attend the
sexual offender program at Project Point of Light, which he completed on
July 9, 2014. Id. at 1-2. Thus, by the time the case was remanded,
Appellant had successfully completed two court-ordered sexual offender
treatment programs. He also completed his term of probation without
incident, graduated from high school, and was a rising university freshman.
N.T., 6/18/2016, at 4, 9.
After remand, Appellant, then age 18, tendered an admission to
indecent assault, and the juvenile court in Jefferson County accepted his
admission and transferred the case to the juvenile court in Clearfield County
for adjudication and disposition. Adjudicatory Hearing Order, 2/24/2016, at
2
There is a typographical error in the juvenile court’s opinion; Appellant’s
probation revocation and placement at AYS occurred in July 2012, not 2013.
See Exhibit A to Appellant’s Omnibus Pre-trial Motion (attaching revocation
of probation order dated July 13, 2012).
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1. After conducting a hearing on August 18, 2016, the juvenile court
determined that Appellant was in need of treatment, supervision, or
rehabilitation, and adjudicated Appellant delinquent of indecent assault.
Adjudicatory/Dispositional Hearing Order, 9/7/2016, at 1-2. The juvenile
court rendered its disposition at the same time, placing Appellant on
probation for one year less one day and ordering Appellant to complete a
psychosexual evaluation at Project Point of Light, to pay court costs, and to
have no contact with the victim. Id. at 2.
After filing a post-dispositional motion, which the juvenile court
denied, Appellant timely filed a notice of appeal. Both Appellant and the
juvenile court complied with Pa.R.A.P. 1925. On appeal, Appellant asks this
Court to decide whether the juvenile court abused its discretion in
adjudicating Appellant delinquent, arguing there was a lack of evidentiary
support to sustain the finding that Appellant was in need of treatment,
supervision, or rehabilitation. Appellant’s Brief at 5. Appellant also
questions whether the juvenile court subjected Appellant to unconstitutional
punishment in violation of the double jeopardy and due process clauses of
the United States and Pennsylvania Constitutions by imposing additional and
extended punishment upon him. Id.
Before we begin our analysis of Appellant’s first issue, we must
consider whether it is moot. At oral argument, counsel for Appellant
informed the Court that Appellant underwent his court-ordered psychosexual
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evaluation and was due to be released from probation in August 2017.
Nevertheless, Appellant argued that his first issue is not moot because he is
contesting his adjudication, not his disposition, and if this Court should rule
that the juvenile court erred by finding him to be in need of treatment, the
Court is able to enter an order that has legal effect because the appropriate
remedy would be to reverse the adjudication order.
We consider the following in determining whether a case is moot.
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as
moot. An issue can become moot during the pendency of an
appeal due to an intervening change in the facts of the case or
due to an intervening change in the applicable law. … An issue
before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.
In re R.D., 44 A.3d 657, 679-80 (Pa. Super. 2012) (citations omitted).
We agree with Appellant that his first issue is not moot for the reasons
he articulated. See In Interest of Kilianek, 378 A.2d 995, 995 (Pa.
Super. 1977) (holding that juvenile’s challenge to her adjudication, which
claimed that juvenile court improperly adjudicated her delinquent despite
not meeting the legal standard for delinquency, was not rendered moot upon
her release from out-of-home placement); In Interest of DelSignore, 375
A.2d 803, 807 (Pa. Super. 1977) (deciding juvenile’s challenge regarding
sufficiency of evidence to support adjudication, but holding objection to
placement was rendered moot upon her release from the placement); R.D.,
44 A.3d at 679-80 (deciding issues relating to adjudication, but holding that
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juvenile’s challenge to his disposition was rendered moot upon his release
from the delinquency placement).
Therefore, we turn our attention to our standard of review of
dispositional orders following delinquency adjudications in juvenile
proceedings. The 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 re C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014); In the
Interest of J.D., 798 A.2d 210, 213 (Pa. Super. 2002).
Before entering an adjudication of delinquency, “the Juvenile Act
requires a juvenile court to find that a child has committed a delinquent act
and that the child is in need of treatment, supervision, or rehabilitation.”
Commonwealth v. M.W., 39 A.3d 958, 964 (Pa. 2012) (emphasis in
original). “A determination that a child has committed a delinquent act does
not, on its own, warrant an adjudication of delinquency.” Id. at 966. See
also In re T.L.B., 127 A.3d 813 (Pa. Super. 2015) (holding that the juvenile
court did not abuse its discretion in finding the appellee was not in need of
treatment, rehabilitation, or supervision when, by the time of the deferred
adjudication hearing, appellee completed the sexual offender portion of his
psychological treatment ordered as part of his dependency matter and had
not acted out in sexualized behavior in more than a year).
The Juvenile Act and Rules of Juvenile Procedure contemplate the
following process. Once the juvenile court determines the Commonwealth
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has proved beyond a reasonable doubt that the child committed the acts
alleged, the court must enter that finding on the record. Id. at 965 (citing
42 Pa.C.S. § 6341(b)). If the juvenile court makes such a finding, next,
either immediately or at a hearing held within 20 days, the court must “hear
evidence as to whether the child is in need of treatment, supervision[,] or
rehabilitation.”3 Id. (emphasis added). “If the court finds that the child is
not in need of treatment, supervision[,] or rehabilitation[,] it shall dismiss
the proceeding and discharge the child from any detention or other
restriction theretofore ordered.” Id. See also Pa.R.J.C.P. 409(1). “If the
court determines the juvenile is in need of treatment, supervision, or
rehabilitation, the court shall enter an order adjudicating the juvenile
delinquent and proceed in determining a proper disposition under Rule 512.”
Pa.R.J.C.P. 409(2)(a).
Our first task is to determine the burden of proof, as the parties
dispute which side bears the burden and what the burden is. Appellant
argues that the Commonwealth had the burden of proving beyond a
reasonable doubt both required prongs for adjudication, i.e., that Appellant
committed a delinquent act and was in need of treatment, supervision, or
3
The Juvenile Act further specifies that “[i]n the absence of evidence to the
contrary, evidence of the commission of acts which constitute a felony shall
be sufficient to sustain a finding that the child is in need of treatment,
supervision[,] or rehabilitation.” 42 Pa.C.S. § 6341(b). This provision does
not apply to Appellant because the felonies charged in this case were nolle
prossed at the time Appellant tendered his admission to the misdemeanor of
indecent assault.
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rehabilitation. Appellant’s Brief at 13. The Commonwealth disagrees,
arguing that the Juvenile Act only requires proof beyond a reasonable doubt
for the first adjudicatory prong regarding the commission of a delinquent
act. Commonwealth’s Brief at 9-12. The Commonwealth does not indicate
what level of proof is required to prove that a juvenile is in need of
treatment, supervision, or rehabilitation. Nor does it argue directly which
party had the burden, although it seems to suggest implicitly that Appellant
did when it argues that the juvenile court was justified in finding that
Appellant was in need of further treatment due to the lack of evidence in the
record demonstrating that Appellant’s prior treatment focused on his later-
admitted delinquent act. Id. at 15.
Our Supreme Court has noted that “the Juvenile Act is not a model of
clarity.” M.W., 39 A.3d at 964. Indeed, the Juvenile Act does not specify
explicitly who has the burden of demonstrating that the juvenile is or is not
in need of treatment, supervision, or rehabilitation. However, in this case,
the Commonwealth is the petitioner, and filed a petition alleging that
Appellant is a “delinquent child” as defined in the Juvenile Act. Petition,
2/21/2012, at 1. The Juvenile Act defines a delinquent child as “[a] child ten
years of age or older whom the court has found to have committed a
delinquent act and is in need of treatment, supervision[,] or rehabilitation.”
42 Pa.C.S. § 6302. Therefore, it stands to reason that the Commonwealth
has the burden of proving both prongs.
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While as a matter of strategy, a juvenile certainly may attempt to
rebut the Commonwealth’s allegation that he or she is in need of treatment,
supervision, or rehabilitation, nothing in the Juvenile Act or in cases
construing the act suggests that a juvenile carries the burden of disproving
that he or she is in need of treatment, supervision, or rehabilitation.
Therefore, the burden remained with the Commonwealth to prove that
Appellant was in need of treatment, supervision, or rehabilitation.
Having settled that it is the Commonwealth that had the burden of
proof, we observe that the Act is silent as to the standard of proof required
for establishing that the juvenile is in need of treatment, supervision, or
rehabilitation. Id. (stating merely that the juvenile court must “hear
evidence” as to the need for treatment, supervision, or rehabilitation). This
is in contrast to the Act’s mandate regarding the juvenile’s commission of a
delinquent act. Id. (“If the court finds on proof beyond a reasonable doubt
that the child committed the acts by reason of which he is alleged to be
delinquent it shall enter such finding on the record….”).
Both parties exclusively cite to M.W. to support their respective
positions, but other than restating the statutory language, our Supreme
Court in M.W. did not address the standard of proof required by the Juvenile
Act. See M.W., 39 A.3d at 965. The United States Supreme Court has
addressed the standard of proof required in the adjudicatory phase of
juvenile delinquency proceedings, holding that “the Due Process Clause
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protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which
he [or she] is charged,” and then extending this holding to the adjudicatory
phase of a juvenile delinquency proceeding. In re Winship, 397 U.S. 358,
364 (1970). However, this holding is not dispositive of what standard of
proof is required to prove that a juvenile is in need of treatment,
supervision, or rehabilitation, as the statute at issue in Winship did not
have a two-pronged approach to adjudication and only required the state of
New York to prove that the juvenile committed a delinquent act. Id.(“Section 712 of the New York Family Court Act defines a juvenile delinquent
as ‘a person over seven and less than sixteen years of age who does any act
which, if done by an adult, would constitute a crime.’”).
Our Supreme Court recently observed that “the standard of proof
serves to allocate the risk of error between the litigants and to indicate the
relative importance attached to the ultimate decision.” Commonwealth v.
Batts, 163 A.3d 410, 453 (Pa. 2017) (citing Addington v. Texas, 441 U.S.
418, 423 (1979)). “The function of a standard of proof … is to instruct the
factfinder concerning the degree of confidence our society thinks he should
have in the correctness of factual conclusions for a particular type of
adjudication.” Id. (citations omitted). Proof beyond a reasonable doubt
“impresses on the trier of fact the necessity of reaching a subjective state of
certitude of the facts at issue” and is normally reserved for criminal matters
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where a person’s right to liberty is at stake. Id. at 453-54 (citing Winship,
397 U.S. at 364). “The stringency of the beyond a reasonable doubt
standard bespeaks the weight and gravity of the private interest affected,
society’s interest in avoiding erroneous convictions, and a judgment that
those interests together require that society impose almost the entire risk of
error upon itself.” Id. (citations and quotation marks omitted).
To determine the interests at stake, we turn to the purpose of the
Juvenile Act for assistance. “Consistent with the protection of the public
interest,” the purpose of the Act is “to provide for children committing
delinquent acts programs of supervision, care and rehabilitation which
provide balanced attention to the protection of the community, the
imposition of accountability for offenses committed and the development of
competencies to enable children to become responsible and productive
members of the community.” 42 Pa.C.S. § 6301. Once a child is
adjudicated delinquent, “[t]he Juvenile Act gives wide latitude to the juvenile
court in fashioning an order of disposition” to achieve these objectives.
Commonwealth v. B.H., 138 A.3d 15, 21 (Pa. Super. 2016); T.L.B., 127
A.3d at 818.
Our legislature could have opted to provide that a child may be
adjudicated delinquent when the Commonwealth proves that the child
committed a delinquent act, thereby invoking the juvenile court’s broad
dispositional powers to protect the public interest, hold the child
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accountable, and assist the child in developing competencies to become a
responsible and productive member of society. It did not. Instead, the
legislature determined that before the juvenile court may use its
dispositional powers, the Commonwealth must also prove that the child is in
need of treatment, supervision, or rehabilitation. 42 Pa.C.S. § 6341(b);
M.W., 39 A.3d at 966. This two-pronged approach suggests that the
legislature intended to limit the instances when the state steps in to govern
a juvenile’s behavior and label the juvenile as a delinquent child. There may
be some instances where a juvenile’s delinquent behavior is better
addressed by the authority of a parent, guardian, or school as opposed to
the coercive authority of a juvenile court judge who does not otherwise know
the juvenile. Once a child is adjudicated delinquent, the juvenile court may
“place the child ‘on probation under supervision of the probation officer of
the court ... under conditions and limitations the court prescribes,’ … commit
the child to an institution or other facility for delinquent children, or … order
payment of fines, costs, fees and restitution.” B.H. (quoting 42 Pa.C.S. §
6352). Thus, involvement with the juvenile delinquency system has
significant consequences for a juvenile, including the potential loss of liberty.
Because the legislature opted to subject a juvenile to those consequences
only if he or she is in of need treatment, supervision, or rehabilitation, we
hold that in addition to proving beyond a reasonable doubt that a juvenile
engaged in a delinquent act, the Commonwealth also must prove beyond a
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reasonable doubt that the juvenile is in need of treatment, supervision, or
rehabilitation.4
We turn to the substance of Appellant’s argument. Appellant points
out that he already successfully completed a commitment to AYS, sexual
offender treatment at Project Point of Light, and a term of juvenile probation
supervision, all of which was undertaken to address the felony crime of
aggravated indecent assault. Appellant’s Brief at 14. Appellant argues that
the juvenile court impermissibly relied upon argument from the district
attorney, which does not constitute evidence, and there is insufficient
evidence otherwise to support the juvenile court’s order. Id. at 14-15.
In its Rule 1925(a) opinion, the juvenile court explained that it was
persuaded that Appellant needed further treatment because there was no
evidence from AYS or Project Point of Light demonstrating that Appellant had
admitted to engaging in any form of indecent assault prior to or during his
treatment. Juvenile Court Opinion, 11/28/2016, at 4. The juvenile court
opined that Appellant’s failure to admit wrongdoing indicated that Appellant’s
rehabilitative needs were not met through his prior treatment. Id. The
juvenile court stated that it may consider the protection of the public
interest, and concluded that further treatment will not only serve Appellant’s
4
Even if the Juvenile Act required a less stringent standard of proof, based
upon the lack of evidentiary support that we discuss infra, we would still
determine that the Commonwealth failed to meet its burden.
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rehabilitative needs but also protect the public by having Appellant address
behaviors that are “a possible danger to society.”5 Id. at 5-6.
We agree with Appellant that the juvenile court’s findings and
conclusions are not supported by the record. A review of the transcript
reveals that the adjudication and disposition hearing consisted primarily of
argument by counsel from both sides,6 and the Commonwealth did not seek
to introduce evidence on its own accord. The juvenile court sua sponte and
without objection entered documents it had received from the Project Point
of Light into the record, including, inter alia, a polygraph examination dated
February 9, 2012, indicating that Appellant denied the allegations against
5
In T.L.B., this Court acknowledged that the Juvenile Act requires the
juvenile court to consider the protection of the public, and to devise a
sentence best suited to the child’s treatment, supervision, rehabilitation, and
welfare, under the individual circumstances of each case. T.L.B., 127 A.3d
at 818. Nevertheless, this Court held that protection of the public may not
be considered until the dispositional phase after the court has adjudicated
the juvenile delinquent, as “M.W. clearly delineated only two factors for the
initial finding of delinquency: the juvenile’s commission of the acts and his
need for treatment, supervision, or rehabilitation.” Id. (citing M.W., 39
A.3d at 959, 964). However, Appellant did not raise this argument, and
therefore, he has waived any challenge to the juvenile court’s error.
6
The hearing began with argument from the parties regarding a defense
motion. N.T., 8/18/2016, at 3. Although the motion is not identified in the
record, presumably the court was referring to Appellant’s pre-adjudication
omnibus motion, which requested, inter alia, that the juvenile court dismiss
the delinquency petition based upon Appellant’s prior successful completion
of sexual offender treatment, out-of-home placement, and probation.
Omnibus Motion for Relief, 11/25/2015, at ¶¶ 4-13. Appellant originally
presented the motion to the juvenile court in Jefferson County, which ruled
that the motion was not ripe and deferred a ruling on the merits for the
juvenile court in Clearfield County to address if necessary. Order,
12/4/2015, at 1.
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him, progress reports from Appellant’s sexual offender treatment from July
2013 to July 2014, a polygraph examination dated June 17, 2014, indicating
the examiner did not discuss the allegations regarding the victim with
Appellant due to Appellant’s pending appeal, and a letter indicating Appellant
successfully completed the treatment program as of July 9, 2014. N.T.,
8/28/2016, at 12; Court Exhibit 1. The progress reports, issued on a
quarterly basis, were brief. Project Point of Light rated Appellant’s group
attendance and participation as excellent (except for one report in which he
received a satisfactory rating) and noted occasional concerns. For example,
the January 2014 report noted he was making slow progress, but did not
offer any further detail. None of the listed concerns discussed whether he
continued to deny the allegations throughout his therapy or the impact that
the lack of an admission might have had upon his therapy. Court Exhibit 1
at 9-14 (unnumbered).
The only testimony7 offered during the hearing was from Appellant’s
probation officer and the chief juvenile probation officer. Appellant’s
7
The notes of testimony from the hearing do not indicate whether the oath
to testify truthfully was administered to Appellant’s probation officer and the
chief juvenile probation officer prior to their statements on the record.
Although we are cognizant that the Juvenile Act permits judicial hearings to
proceed in an informal fashion, this Court recognized long ago that In re
Gault, 387 U.S. 1 (1967) mandates that witnesses at juvenile delinquency
hearings be sworn in so that the “juvenile may be confronted by witnesses
subject to oath and penalties for perjury.” Commonwealth ex rel.
Freeman v. Superintendent of State Corr. Inst. at Camp Hill, 242 A.2d
903, 908 (Pa. Super. 1968). “Without an administration of an oath to a
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probation officer agreed in response to a question from Appellant’s counsel
that Appellant was a “model probationee” during his supervision of
Appellant. N.T., 8/18/2016, at 9. Later during the hearing, the juvenile
court inquired whether the Commonwealth or the probation office had any
reports indicating whether Appellant admitted to engaging in impropriety
during his treatment. The chief juvenile probation officer responded that, to
her knowledge, Appellant did not admit anything during his treatment, but
qualified her answer by stating that his actual probation officer was more up
to date on the case than she was because he received a lot of the reports.
N.T., 8/18/2016, at 10. Nevertheless, no one asked Appellant’s probation
officer to provide testimony on the issue. The court also asked why the
probation office was recommending that Appellant undergo another
psychosexual evaluation since he had received one in the past. The chief
probation officer responded as follows:
[t]he psychosexual [evaluation] is going to determine any level
of risk. They will do an Abel [Assessment for Sexual Interest],
they do a psychological [evaluation]. He had this done before.
It’s just to determine is he [a] risk right now, does he need any
further treatment now that he’s admitting as opposed to when
he wasn’t admitting. It’s just erring on safety at this point in
time. And, you know, I’m really interested in seeing what
witness, the taking of testimony is meaningless.” Id. In fact, we have held
that “[t]he lack of an oath means that there was no testimony.” Tecce v.
Hally, 106 A.3d 728, 731 (Pa. Super. 2014). Without testimony, there is
“no record evidence upon which the trial court could support its order.” Id.Nevertheless, to the extent that the oath was not administered, Appellant
neither objected at the hearing nor raised this issue on appeal, and therefore
this issue is waived. Id. at 732.
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Project Point of Light has to say. If they believe he needs no
more further treatment, he needs no more further treatment.
It’s just a tool to give us as to how to better supervise him for
the next year, if that’s how long he stays.
N.T., 8/18/2016, at 11-12.
As noted supra, the Juvenile Act requires the juvenile court to hear
evidence as to whether the juvenile is in need of treatment, supervision, or
rehabilitation, and then make a finding based on that evidence. The
Commonwealth failed to meet its burden in introducing such evidence, and
nothing in the record supports the juvenile court’s finding that Appellant is in
need of treatment, supervision, or rehabilitation. Significantly, while the
chief probation officer noted her qualified belief that Appellant had never
admitted to wrongdoing during his prior treatment, she also acknowledged
that she wanted Appellant to undergo the psychosexual evaluation because
she did not know whether Appellant was in need of further treatment.
Thus, her statement cannot support the finding that Appellant is actually in
need of further treatment.
According to the juvenile court, “[Appellant’s] records clearly show
that his initial treatment did not address his admission and that his
admission to the indecent assault offense would have been crucial to
effective treatment.” Id. at 5. Because the juvenile court fails to cite to the
record in its Rule 1925(a) opinion, we can only speculate to which records
the court is referring. The only records introduced at the hearing were the
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records from Project Point of Light. As the juvenile court even acknowledges
in its Rule 1925(a) opinion, the documentation from Project Point of Light
does not “make any mention of therapy that addressed [Appellant’s]
offenses.” Id. Therefore, the quality and effectiveness of Appellant’s
therapy at Project Point of Light as to this issue are unknown. While the
early records indicate that Appellant denied touching the victim’s vagina, the
later records do not indicate whether Appellant subsequently took
responsibility. Moreover, nothing in the Project Point of Light records
supports the juvenile court’s finding that Appellant’s admission to the
indecent assault offense was crucial to effective treatment.
The juvenile court’s opinion also refers to Appellant’s initial residential
treatment at AYS, stating Appellant’s failure to admit to indecent assault
“severely impeded the progress of his treatment” because “acceptance of
responsibility and offense disclosure are criteria to determine progress in
sexual offender treatment.” Juvenile Court Opinion, 11/28/2016, at 4.
Although we were unable to locate documentation or testimony from AYS
anywhere in the certified record, we presume that the juvenile court is
relying upon a document entitled “AYS Ross’ House Report of Progress/Court
Summary Individual Service Plan” addressing Appellant’s sexual offender
treatment during the period between July 13, 2012 and September 10,
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2012.8 We recognize that the juvenile court may have had knowledge of
this document from Appellant’s delinquency proceedings prior to his first
appeal. However, that disposition was vacated, and this document was not
admitted or even mentioned during the August 18, 2016 adjudicatory
hearing. Without notice of its use, Appellant had no opportunity to object to
its consideration or to cross-examine its author. “[A] trial court may not
consider facts or evidence dehors the record in making its determination.”
Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984). See also
Commonwealth v. McNeal, 120 A.3d 313, 328 (Pa. Super. 2015)
(vacating judgment of sentence because the trial court “convicted McNeal of
a crime with evidence that the Commonwealth never introduced at trial. This
8
The Commonwealth appended a copy of this report to its brief as part of its
supplemental reproduced record. Appellant filed a motion to strike this
document from the appellate record, as well as portions of the
Commonwealth’s brief referencing the document, based upon Appellant’s
contention that the document is not part of the certified record in this case.
Motion to Strike, 4/13/2017, at ¶7. In its response to Appellant’s motion to
strike, the Commonwealth avers that the AYS report was made part of the
record in the juvenile court based upon the juvenile court’s reliance on the
document in its Rule 1925(a) opinion. It also contends Appellant was aware
of the document due to the Commonwealth’s attaching it to its letter brief to
the juvenile court in response to Appellant’s pre-adjudication and disposition
hearing memorandum, as well as the document’s use in an unspecified
review of placement proceeding (which presumably occurred before the prior
adjudication was vacated, as Appellant was not in placement after remand).
Commonwealth’s Response to Motion to Strike, 4/28/2017, at ¶ 7. The
Commonwealth provides no citations to the record, and based upon our
review, these documents do not appear in the certified record. However,
based upon our resolution of this issue, we deny Appellant’s motion to strike
as moot.
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was patent error.”) If the evidence does not appear of record, we may not
give evidence cited in a brief or in the opinion of the lower court any effect
on appeal. Commonwealth v. Reno, 449 A.2d 630, 632 (Pa. Super.
1982). Thus, the juvenile court erred by considering the AYS report, and the
AYS report cannot support its finding that Appellant needed treatment. 9
It is clear from the juvenile court’s opinion that it impermissibly shifted
the burden regarding whether Appellant was in need of treatment,
supervision, or rehabilitation to Appellant. In its opinion, the court stated
“at no point in the pre-adjudication and disposition hearing memorandum
did [Appellant] aver that he either admitted or received treatment focused
on his delinquent acts in this case.” Id. at 5 (unnecessary capitalization
omitted). Moreover, despite the lack of relevant documentation and the
Commonwealth’s failure to call any of Appellant’s former service providers or
other relevant witnesses, the juvenile court concluded the absence of
evidence was affirmative proof that Appellant needed treatment, when in
reality all it demonstrates is that the Commonwealth failed to meet its
burden. The juvenile court opined that the lack of evidence suggested that
9
Even assuming arguendo that it was proper for the juvenile court to have
relied upon this document in adjudicating Appellant delinquent, it does not
support the court’s finding that Appellant was still in need of further
treatment in August 2016. While Appellant’s treatment faced obstacles back
in mid-2012, this document does not address whether Appellant continued
to deny any wrongdoing or whether Appellant made progress in treatment at
AYS after the document’s submission or later in treatment at Project Point of
Light.
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Appellant’s former treatment was ineffective now that he admitted to
engaging in indecent assault. This may be the case. But it is also entirely
possible that Appellant’s former treatment is what caused Appellant to
accept responsibility for his actions at age 18 during the current
proceedings. Either way, it is the Commonwealth’s burden to provide
evidence proving that Appellant needed treatment, supervision, or
rehabilitation at the time of the adjudicatory hearing, and the
Commonwealth failed to do so.
Due to its statutory mandate to make a finding based upon evidence
proving that Appellant is in need of treatment, the juvenile court abused its
discretion by basing its finding upon its own opinion or speculation. The
juvenile court had tools at its disposal to assist the court in determining
whether Appellant needed further treatment prior to adjudicating Appellant
delinquent.10 Having elected not to use those tools, the juvenile court was
10
Because Appellant admitted to engaging in a delinquent act, “prior to the
hearing on need for treatment,” the juvenile court could have directed that a
“social study and report in writing to the court be made by an officer of the
court or other person designated by the court, concerning the child, his
family, his environment, and other matters relevant to disposition of the
case.” 42 Pa.C.S. § 6339(a). It also could have ordered Appellant to
undergo a psychosexual evaluation prior to adjudication. 42 Pa. C.S.
§ 6339(b). (“During the pendency of any proceeding the court may order
the child to be examined at a suitable place by a physician or
psychologist….”). The Juvenile Act also permits a juvenile court, “on its
motion or that of a party,” to “continue the [adjudicatory hearing] for a
reasonable period, within the time limitations imposed by this section, to
receive reports and other evidence bearing on the disposition or the need for
treatment, supervision[,] or rehabilitation.” 42 Pa.C.S. § 6341(e).
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limited to basing its decision upon the evidence presented at the
adjudicatory hearing.
Based on the foregoing, we hold that the juvenile court abused its
discretion in finding that Appellant was in need of treatment because this
finding is not supported by the record. Therefore, we vacate the juvenile
court’s dispositional order and reverse the adjudication of delinquency. 11
Dispositional order vacated. Adjudication of delinquency reversed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
11
Because we grant Appellant the requested relief based upon his first
question, we need not consider his double jeopardy and due process
challenge.
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