In the Interest of: B.E., Appeal of: B.E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.E. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: B.E. : No. 1463 WDA 2019
Appeal from the Order Dated August 27, 2019
in the Court of Common Pleas of Allegheny County
Juvenile Division at No(s): CP-02-JV-0000685-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 26, 2021
B.E. appeals from the dispositional Order entered following his
adjudication of delinquency for simple assault.1 We affirm.
The juvenile court summarized the facts underlying this appeal as
follows:
On April 10, 2019, the Pittsburgh [Bureau of Police] filed a
Written Allegation, asserting that B.E. assaulted a nurse at the
Western Psychiatric Hospital [(“WPH”)] … on March 26, 2019.
According to the nurse who was assaulted, an eyewitness, and
hospital video, B.E. was chasing the victim around in the hospital
attempting to obtain her hospital keys. [B.E.] is then observed
slapping and punching the victim on the right side of her face. The
victim went to UPMC Presbyterian Hospital for emergency
treatment due to her injuries. It was then determined that B.E.
had broken the nurse’s nose. After the initial investigation, it was
confirmed that the nasal fracture required surgery for repair.
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1 See 18 Pa.C.S.A. § 2701(a)(1).
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Juvenile Court Opinion, 2/7/20, at 1 (unnumbered) (footnote omitted). B.E.
was 14 years old at the time of the incident.
On June 4, 2019, the Commonwealth filed a Delinquency Petition,
charging B.E. with the delinquent act of aggravated assault, a first-degree
felony.2
The juvenile court held a pre-hearing conference on July 2, 2019. At
that time, defense counsel requested that B.E. undergo a competency
evaluation and a psychiatric evaluation. The juvenile court continued the
matter pending the evaluations.
On August 27, 2019, the juvenile court conducted an adjudicatory
hearing. At that time, the parties entered into a negotiated settlement. The
Commonwealth agreed to amend the charge, and B.E. completed an
Admissions Form, in which he admitted to committing the delinquent act of
simple assault, a second-degree misdemeanor. Further, the Commonwealth
and B.E. agreed to determine the appropriate amount of restitution at a later
date, when more information became available. See N.T., 8/27/19, at 2-3.
B.E.’s mother (“S.E.”) and his probation officer, Matthew Filipovic (“P.O.
Filipovic”), also testified during the adjudicatory hearing. At the conclusion of
the hearing, the juvenile court accepted B.E.’s admission, and determined that
B.E. was in need of treatment, supervision or rehabilitation.
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2 See 18 Pa.C.S.A. § 2702(a)(1).
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The juvenile court adjudicated B.E. delinquent, and placed him on
probation “until further order of this [c]ourt, under and subject to the rules
and regulations of the County Juvenile Probation Office.” Dispositional
Hearing Order, 8/27/19, at 1. The juvenile court also ordered B.E. to pay
standard court costs, complete 25 hours of community service, continue with
mental health treatment, attend school daily and on time, and have no
inappropriate contact with the victim. B.E. filed a timely Notice of Appeal from
the Dispositional Order.3
Following a separate restitution hearing on October 1, 2019, the juvenile
court ordered B.E. to pay restitution to the victim in the amount of $500.38.4
On October 19, 2019, the juvenile court ordered B.E. to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal within 21 days
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3 “In 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.” In Interest of P.S., 158 A.3d 643, 649 (Pa. Super. 2017)
(citation, quotation marks and brackets omitted); see also In re J.G., 45
A.3d 1118, 1121-23 (Pa. Super. 2012) (concluding that the juvenile court had
authority to issue a restitution order after it had entered its dispositional order,
as nothing in the Juvenile Act requires a court to order restitution within 30
days of entry of a dispositional order; nothing in the Juvenile Act prevents a
court from scheduling restitution review after information becomes available;
and the juvenile was aware that the Commonwealth sought restitution at the
time he was adjudicated delinquent).
4B.E. subsequently filed a Motion for Reconsideration, challenging the amount
of restitution on the basis that many of the victim’s expenses had been
covered by worker’s compensation. The juvenile court scheduled a hearing
on the Motion for Reconsideration for February 5, 2020. The certified record
contains no additional information concerning this hearing. The amount of
restitution is not at issue in this appeal.
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of the date the Order was entered on the docket. B.E.’s counsel subsequently
filed a Petition for Extension of Time to file a concise statement, which the
juvenile court denied on January 3, 2020. On January 14, 2020, after
receiving notice from this Court that the certified record for this case was
overdue, the juvenile court filed a Statement in Lieu of Opinion, stating that
it was unable to respond to B.E.’s Notice of Appeal, because B.E. had not filed
a concise statement. B.E. filed with this Court a Petition to Remand,
explaining that the juvenile court did not formally rule on counsel’s Petition
for Extension of Time until approximately two months after it was filed. B.E.
therefore requested that this Court remand the case to the juvenile court for
the filing of a concise statement, nunc pro tunc. On January 23, 2020, this
Court entered an Order remanding B.E.’s case to allow B.E. to file a nunc pro
tunc Pa.R.A.P. 1925(b) concise statement, and for the juvenile court to file an
opinion. Both B.E. and the juvenile court complied.
On appeal, B.E. raises the following issue for our review: “Whether the
evidence was insufficient as a matter of law to find that B.E. was in need of
treatment, supervision, and rehabilitation through the juvenile court system,
and, therefore, to adjudicate B.E. delinquent?” Brief for Appellant at 7.
B.E. claims that he was not in need of treatment, supervision, or
rehabilitation through the juvenile court system. Id. at 19. B.E. asserts that
the juvenile court failed to make a finding that he requires treatment,
supervision or rehabilitation. Id. at 20-21. Additionally, B.E. argues that the
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juvenile court did not conduct an oral colloquy of B.E. regarding his admission
until after it had determined that B.E. was delinquent, and that the colloquy
was defective. Id. at 23-24. Further, B.E. argues, “the juvenile court is not
required to determine that the child is in need of supervision or rehabilitation
simply because the case involves restitution.” Id. at 28.5
Initially, for context, we reference the stated purpose of the Juvenile
Act:
Consistent with the protection of the public interest, 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.A. § 6301(b)(2). “This section evidences the Legislature’s clear
intent to protect the community while rehabilitating and reforming juvenile
delinquents.” In re B.T.C., 868 A.2d 1203, 1204 (Pa. Super. 2005) (citation
and quotation marks omitted).
For further context, before adjudicating a child delinquent and entering
a dispositional order, a juvenile court must first make two distinct findings.
“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
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5 Though B.E. purports to challenge the sufficiency of the evidence, B.E. does
not argue that the evidence fails to support an adjudication of delinquency for
simple assault. Rather, his claim is properly characterized as a challenge to
the juvenile court’s exercise of discretion in making the necessary findings.
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child is in need of treatment, supervision, or rehabilitation.” In Interest of
N.C., 171 A.2d 275, 280 (Pa. Super. 2017) (citation omitted; emphasis in
original); see also 42 Pa.C.S.A. § 6302 (defining 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.”).
B.E.’s claim challenges both steps of the process for adjudicating a child
delinquent. The portion of B.E.’s argument challenging the adequacy of his
admission colloquy pertains to the first step of the process, i.e., the finding
that the child committed a delinquent act. B.E. did not preserve this claim in
his Pa.R.A.P. 1925(b) Concise Statement, or in his Statement of Questions
Involved; rather, B.E. only preserved a challenge to the second required
finding. Accordingly, this portion of B.E.’s argument is waived. See Pa.R.A.P.
1925(b)(4)(vii) (providing that “[i]ssues not included in the Statement … are
waived.”); Commonwealth v. Scott, 952 A.2d 1190, 1191 (Pa. Super. 2008)
(stating that “waiver automatically applies … if an issue is not included in the
Rule 1925(b) statement….”); see also Pa.R.A.P. 2116(a) (providing that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”); Pa.R.A.P. 302(a) (providing that
“[i]ssues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”). Thus, we address only B.E.’s argument that the
juvenile court abused its discretion in determining that he is in need of
treatment, supervision, or rehabilitation through the juvenile court.
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“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 Interest of N.C., 171 A.3d at 280.
A determination that a child has committed a delinquent act
does not, on its own, warrant an adjudication of delinquency.
After determining that a juvenile has committed a delinquent act,
the court shall then hear evidence “as to whether the child is in
need of treatment, supervision or rehabilitation, as established by
a preponderance of the evidence, and make and file its own
findings thereon.” 42 Pa.C.S.[A.] § 6341(b).
Interest of C.B., 2020 PA Super 265, at *3 (Pa. Super. 2020) (footnotes and
some citations, quotation marks, and brackets omitted).
Regarding dispositional hearings, section 6341 provides, in relevant
part, as follows:
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 and shall
specify the particular offenses, including the grading and counts
thereof which the child is found to have committed. The court
shall then proceed immediately or at a postponed hearing,
which shall occur not later than 20 days after such finding if the
child is in detention or not more than 60 days after such finding if
the child is not in detention, to hear evidence as to whether
the child is in need of treatment, supervision or
rehabilitation, as established by a preponderance of the
evidence, and to make and file its findings thereon. This
time limitation may only be extended pursuant to the agreement
of the child and the attorney for the Commonwealth. The court’s
failure to comply with the time limitations stated in this section
shall not be grounds for discharging the child or dismissing the
proceeding. In 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. If the court finds that the child is not
in need of treatment, supervision or rehabilitation it shall dismiss
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the proceeding and discharge the child from any detention or
other restriction theretofore ordered.
42 Pa.C.S.A. § 6341(b) (emphasis added).6 Section 6341 also provides as
follows regarding the evidence a court may receive:
(d) Evidence on issue of disposition.--
(1)(i) In disposition hearings under subsection[] (b) … all evidence
helpful in determining the questions presented, including oral and
written reports, may be received by the court and relied upon to
the extent of its probative value even though not otherwise
competent in the hearing on the petition.
(ii) Subparagraph (i) includes any screening and assessment
examinations ordered by the court to aid in disposition, even
though no statements or admissions made during the course
thereof may be admitted into evidence against the child on the
issue of whether the child committed a delinquent act.
(2) The parties or their counsel shall be afforded an opportunity
to examine and controvert written reports so received and to
cross-examine individuals making the reports. Sources of
information given in confidence need not be disclosed.
Id. § 6341(d).
During the adjudicatory hearing, P.O. Filipovic requested that the
juvenile court place B.E. on probation, and order 25 hours of community
service. N.T., 8/27/19, at 3. P.O. Filipovic indicated that he has a good
relationship with the family, based on his past work with them, and that he
would continue to work with the family as directed. Id. at 4. P.O. Filipovic
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6The presumption set forth in section 6341(b) does not apply because B.E.
entered an admission to the delinquent act of simple assault, a second-degree
misdemeanor.
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testified that B.E. had started school, and was receiving services through Holy
Family Institute. Id. P.O. Filipovic stated that, at that time, B.E. was receiving
psychiatric care through Probation. Id. at 5. Additionally, P.O. Filipovic stated
his understanding that, on the date of the incident, B.E was at WPH for
medication adjustments. Id. at 4.
S.E. testified as follows regarding the reason B.E. was at WPH:
[Defense Counsel]: And why was he -- why did you have him at
[WPH]?
[S.E.]: That day he was at school, they 302’d[7] him to --
(unintelligible) -- committing suicide and was looking for scissors,
and they took him down there and then we decided to keep him,
plus he was off a couple of his medications. We figured since he’s
there, get his medications readjusted.
[Defense Counsel]: So he got his medication adjusted while he
was there?
[S.E.]: Yes.
[Defense Counsel]: And he was discharged from [WPH]?
[S.E.]: Yeah. He was there for two weeks.
Id. at 6-7 (footnote added). S.E. also testified that, at that time, B.E. was
receiving psychiatric care through Wesley Family Services, and that B.E. has
been compliant with his medications. Id. at 7. S.E. stated that B.E. had
started school at Holy Family, where he has an individualized education plan,
and that Holy Family offers emotional and behavior support. Id.
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7Section 302 of the Mental Health Procedures Act provides for an involuntary
emergency examination and treatment, for a period not to exceed 120 hours.
See 50 P.S. § 7302.
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The juvenile court then heard arguments from both parties. B.E.’s
counsel argued that B.E. was not in need of further treatment, as he was
compliant with his medication, and he receives the services he needs through
Wesley Family Services. Id. at 8. B.E.’s counsel also highlighted that P.O.
Filipovic did not recommend additional services. Id. at 9; see also id.
(wherein B.E.’s counsel stated, “The only thing that Probation is offering is
community service and pay court fees. [B.E.] does not need any additional
services. They’re not even recommending any additional services be put in
place.”). In response, the Commonwealth stated,
Judge, we have an admission. I mean, clearly, there are injuries.
[B.E.] has a history of aggression that has culminated in his
admission to the simple assault today. The victim is in compliance
with the negotiated settlement. Her main concern is that [B.E.]
gets treatment and that she receive restitution in this matter.
Id. at 9.
Thereafter, the juvenile court stated as follows:
In regard to the matter concerning [B.E.]—first of all, we
should be aware that this was not the first time he’s been in court.
There’s no question that he needs further court supervision
and/or treatment. [B.E.’s] actually in some type of treatment
now, so when we look at the adjudication phase, it doesn’t mean
that he needs more treatment, just that he needs some
treatment, which obviously he does.
There’s been no argument or any request that [B.E.] is
incapable of assisting his [c]ounsel in regard to this matter, so in
regard to his competency, that’s not part of this issue here today.
I’m in agreement with Probation, that [B.E.] does need
further [c]ourt supervision and/or treatment. Therefore, he is
adjudicated delinquent in regard to the [P]etition … of simple
assault.
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[B.E.] is to be placed on probation at this time. Restitution
remains open, and this [c]ourt will set a court date in regard to
such costs, and he is to have no inappropriate contact with any
nurses or doctors there at Wesley Spectrum.
[B.E.] will also complete 25 hours of community service.
[B.E. is] also required to attend school each and every day as well
as all classes while there. Any questions? He will also continue
with his mental health treatment, [and] will follow all
recommendations in regard to any meds as well.
Id. at 9-11 (emphasis added); see also Juvenile Court Opinion, 2/7/20, at 3-
5 (unnumbered) (summarizing the above testimony, and referencing its on-
the-record explanation for its decision).8
We discern no manifest abuse of discretion in the juvenile court’s finding
that B.E. is in need of treatment, supervision and rehabilitation, and the record
supports the juvenile court’s finding in this regard. The juvenile court heard
arguments from both counsel, as well as the testimony of P.O. Filipovic and
S.E. Significantly, P.O. Filipovic, who had worked with B.E.’s family before,
testified as to his belief that B.E. should be placed on probation. See N.T.,
8/27/19, at 3-4. Cf. In Interest of N.C., 171 A.3d at 283-84, 286-87
(concluding that the juvenile court abused its discretion in finding that child
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8 We observe that the certified record contains Pre-Disposition Reports,
completed by P.O. Filipovic, filed June 26, 2019, and August 16, 2019.
Additionally, the juvenile court ordered B.E. to under competency and
psychiatric evaluations prior to the adjudicatory hearing. The competency and
psychiatric evaluation reports are not included in the certified record, nor did
the juvenile court specifically reference their contents during the adjudicatory
hearing.
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was in need of treatment, supervision or rehabilitation, where court primarily
heard arguments from both counsel; the Commonwealth did not introduce
evidence; and the court’s determination was based on speculation).
Moreover, the juvenile court’s disposition was “consistent with the protection
of the public interest and best suited to the child’s treatment, supervision,
rehabilitation and welfare….” 42 Pa.C.S.A. § 6352 (authorizing juvenile courts
to impose, inter alia, probationary terms and restitution in dispositions of
delinquent children). Because we discern no manifest abuse of the juvenile
court’s discretion, we affirm the juvenile court’s dispositional Order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2021
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