In re Interest of D.J.B.

• Decision Date: 24 February 2020
• Docket Number: No. 896 WDA 2019,896 WDA 2019
• Citation: 230 A.3d 379
• Parties: In the INTEREST OF: D.J.B. Appeal of: D.J.B.
• Court: Pennsylvania Superior Court

230 A.3d 379

In the INTEREST OF: D.J.B.

Appeal of: D.J.B.

No. 896 WDA 2019

Superior Court of Pennsylvania.

Submitted November 4, 2019

Filed February 24, 2020

Matthew C. Parson, Franklin, for appellant.

John P. Kulzer, III, Assistant District Attorney, Meadville, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY KUNSELMAN, J.:

Appellant D.J.B., age 17, appeals from the dispositional order following his delinquency adjudication of indecent assault.^{1 ,2} Appellant claims his right to due process was violated when the juvenile court allegedly predetermined Appellant's delinquency during a sidebar conference. Appellant also challenges the sufficiency of the evidence. For the reasons below, we affirm.

The record discloses the following factual and procedural history:

On July 1, 2018, the 17-year-old complainant (A.S.) was on vacation at the Farma Family Campground in Mercer County, Pennsylvania. At approximately 3:00 a.m., A.S. met friends on the dock of a pond. The group comprised of a boy and a girl previously known to A.S., and Appellant, whom A.S. had never met. The boys fished off of the dock. A.S. wore a shirt and shorts, which had become wet because she went in the water. One of the boys, N.B., gave A.S. his XXL hooded sweatshirt, which was so large on A.S.'s person that she was able to pull the sweatshirt over her knees when she sat down. At some point, the other girl went back to her camper, leaving A.S. alone with Appellant and N.B. The three sat together on a bench for a time, until N.B. got up to check on the fishing poles.

A.S. testified that when N.B. walked across the dock, Appellant reached through the sleeve of the sweatshirt and began touching A.S. from her knee to her inner thigh, underneath her shorts but over her underwear. See N.T. (Adjudication Hearing), 3/8/2019, at 9, 11. A.S. pushed Appellant's arm away, but as he started to pull his hand out, he stopped for approximately a minute, and then reengaged by pulling down A.S.'s bra and felt her breasts. Id. at 9-10. A.S. mouthed the word "no" and pushed Appellant's arm away again. Id. at 13. The touching stopped. A.S. testified that she never consented to Appellant's contact. A.S. said she then stood up and walked around the dock. She remained at the dock for approximately an hour before walking to her camper and going to sleep. The following morning, A.S. told her then-boyfriend, J.P., what happened.³

J.P. testified that A.S. told him she was touched inappropriately by Appellant at the dock. Id. at 24. J.P. testified further that he and Appellant exchanged messages via the Snapchat app, wherein Appellant apologized. Id. at 26. But J.P. also testified that Appellant told him the touching was consensual: "[Appellant] told me that, yes, [A.S.] - - you know, [A.S.] – or he touched [A.S.] and [A.S.] also touched [Appellant]. Id.

Pennsylvania State Trooper Tyler Craig was tasked with investigating the report made by A.S. Trooper Craig testified that he interviewed Appellant. Trooper Craig told Appellant that the reason for the interview was an alleged inappropriate contact. Trooper Craig testified that Appellant said he did not know where the allegations could have stemmed from. Id. at 30. According to Trooper Craig, Appellant eventually said that the contact was consensual and that A.S. had guided his hand to her vaginal area, over her clothes. Appellant denied to Trooper Craig that he touched A.S.'s breasts. Id. at 32. Trooper Craig testified that Appellant later admitted knowing the purpose of the interview prior their discussion. Following the testimony of A.S., J.P., and Trooper Craig, the Commonwealth rested.

Appellant began his case-in-chief by calling to the stand N.B., the boy who lent A.S. the sweatshirt and the only other witness to the incident. N.B. testified that when the three of them sat together on the bench, he also reached through the sleeve, up to his wrist, to warm his hands. Id. at 37-38. N.B. said he did so on his own, without A.S.'s invitation, but did not make contact with A.S. Eventually, N.B. got up to check on the fishing poles.

N.B. waivered in his testimony about the contact between A.S. and Appellant. At first, N.B. testified that he did not notice anything odd between them. Id. at 38. N.B. characterized the conversation between A.S. and Appellant as "[j]ust joking around and having fun, laughing." Id. at 39. N.B. also testified that he was not paying much attention to Appellant and A.S. when the contact occurred. Id. at 42. But N.B. ultimately conceded that at the end of the night, he messaged A.S.'s boyfriend, J.P., to alert him that A.S. appeared to be uncomfortable. Id. at 43. N.B. testified that he did so because he was best friends with both J.P. and Appellant, and wanted to "take both their sides." Id. N.B. concluded his testimony by stating that while he perceived A.S. to be uncomfortable at that moment, "looking back on it now, no, nobody seemed uncomfortable or anything." Id.

At this juncture in the hearing, the court called the attorneys to the sidebar for a conference:

The Court : I will only do this if counsel agrees, it is just an idea I have had. But, the trooper only charged one count of indecent assault. Now that we know that the vagina was not involved, I am wondering if we could amend the complaint to include one count of harassment and that way we can dispense with your client [ (Appellant) ] testifying. I do not favor that whatsoever, but that's just an idea. You have to get the trooper's approval. If you don't want to do it, just say no. Say no right now, and we will continue on.

Assistant D.A. : Do you want to talk to your client about that?

Defense Counsel : I can talk to them again, Your Honor. I can say on the record that the D.A.'s Office made a couple offers already going toward this degree and each one has been rejected so far. So I can re-ask them, but they wanted to put on their side of the story.

The Court : Let him know that this all comes down to the definition of indecent contact, any touching of the sexual or other intimate parts. So I don't know whether breast is an indecent - - in Europe, women go to the beach and expose their breasts, but I am just saying.

Defense Counsel : Not to aid the Commonwealth out, but I think my own research on that is that that would still be indecent contact.

Assistant D.A. : It is.

Defense Counsel : It is still indecent contact, Your Honor.

The Court : So, what about harassment? Again, This is only with your approval.

Assistant D.A. : I understand.

The Court : Because I have a speech already in mind for your client. The Me-Too speech, I am going to call it. This is sexual harassment that the juvenile - - again, I don't want to him to testify if he doesn't have to. It makes me uncomfortable. But, again, check with your clients. It is up to you.

Assistant D.A. : I will leave that ball in your court.

Defense Counsel : Ok.

N.T. at 44-46.

After the sidebar conference concluded, the court took a brief recess. No agreement was reached, and Appellant took the stand in his own defense. In Appellant's telling of the events, A.S. initially invited him to reach into the sweatshirt to warm his hands. Appellant testified that A.S. guided his hand between her thighs and over her clothes. Id. at 51. Appellant denied touching her breasts. Appellant testified that J.P. was upset with him because A.S. was touching Appellant. Id. at 53. Appellant testified further that A.S. was upset with him for telling her then-boyfriend, J.P., what happened. Id.

After both parties presented their closing arguments, the court promptly adjudicated Appellant delinquent. The court then detailed its reasoning, explaining to Appellant that the case came down to witness credibility and that the court believed the complainant, A.S. In articulating its rationale, the court referenced the Me Too Movement and asked whether Appellant had heard of it. When Appellant indicated that he had not, the court attempted to explain:

Okay. It is a big time movement in the United States of America. And what it pertains to, or what it relates to, is sexual harassment. And some very, very, very powerful people have had their careers, lives, ruined because of sexual harassment. And that's what the Me Too Movement is all about. It's the fact that women have basically said they have had enough and they are not taking it anymore. And so this is basically what is happening to you, okay?

Back in the day, in my day, what I feel or what I find happened was, and this is a term, "copping a feel." I don't know if you have ever heard that term or not, but what was the term back in the '80s. [The assistant district attorney] used another term, and that was "grope." So, either one is applicable here.

This comes down [...] to credibility. Whom do I believe? And the fact of the matter is, I believe [the complainant, A.S.].

[...]

Okay. Again, [Appellant], take the time to look up the Me Too Movement. Unfortunately – well, actually it is not unfortunately. I should say, fortunately, society has changed and copping a feel is no longer appropriate. And, in fact, it is a crime.

So, if you learn that lesson now as a juvenile, you won't run into this as an adult, because there are plenty of adults out there, like I said, that have had their lives just destroyed because of sexual harassment because they did not learn that society has changed.

N.T. at 65-68; see generally id. at 64-69.

After adjudicating Appellant delinquent, the trial court transferred disposition to Crawford County, where Appellant resides. The juvenile court in Crawford ordered Appellant to be placed on probation, assessed fees and costs, and allowed for community service in lieu of cash payments if such work was available. Appellant presents this timely-filed appeal. He raises two issues for our review:

1. Whether the juvenile court erred as a matter of law or abused its discretion in denying the juvenile due process rights when the juvenile court

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