In re R.D.

• Decision Date: 18 June 2012
• Citation: 44 A.3d 657,2012 PA Super 84
• Parties: In the Interest of R.D. Appeal of R.D. In the Interest of R.D. Appeal of R.D. In the Interest of R.D. Appeal of R.D.
• Court: Pennsylvania Superior Court

44 A.3d 657

2012 PA Super 84

In the Interest of R.D.

Appeal of R.D.

In the Interest of R.D.

Appeal of R.D.

In the Interest of R.D.

Appeal of R.D.

Superior Court of Pennsylvania.

Argued Jan. 10, 2012.

Filed April 10, 2012.

Reargument Denied June 18, 2012.

Daniel Silverman, Philadelphia, for appellant.

Michael W. Streily, Deputy District Attorney and Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, participating party.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and COLVILLE^*, JJ.

OPINION BY SHOGAN, J.:

Appellant, R.D., a minor, appeals from the dispositional order entered following an adjudication of delinquency based on evidence that he attempted to kill his former girlfriend, S.D., on October 31, 2007, by hitting her in the head with a hammer and physically assaulting her.¹ For the reasons that follow, we affirm.

Appellant and S.D. attended the same high school in Mt. Lebanon, Pennsylvania, and were romantically involved from the spring of 2006 until the end of the 2006–2007 school year. In late October 2007, Appellant and S.D. exchanged text messages about meeting in order to return each other's possessions. At the end of the school day on October 31, 2007, Appellant agreed to return S.D.'s possessions with the condition that she would take a walk with him; she complied. The two walked along a path near the Port Authority trolley tracks. While they were walking, Appellant struck S.D. in the back of her head with a hammer, causing her to fall. As she lay on the ground, Appellant physically assaulted S.D., inflicting injuries to her face and teeth. Appellant took S.D.'s cell phone from her pocket, broke it, and discarded it. During the assault, Appellant remarked that he wanted to kill himself. He also told S.D. that he had a knife. After the assault, Appellant led S.D. down the path toward a drug store, suggesting he would bandage her head.

While walking his dog, off-duty Allegheny County Detective Lawrence Carpico observed Appellant and S.D. on the path coming towards him. Appellant pulled S.D. down an embankment to avoid being seen by Detective Carpico. As Appellant reached for something in his backpack, S.D. escaped and ran toward Detective Carpico, bloody and screaming for help. She carried a hammer in her hands. Detective Carpico escorted S.D. to a nearby house as she described the assault to him and indicated that Appellant planned to jump in front of a trolley. As they walked along the path, Detective Carpico noticed a trolley stopped on the tracks. He learned from the trolley operator that someone had just been struck further along the tracks. Upon reaching a nearby residence, Detective Carpico telephoned 911. An ambulance transported S.D. to Children's Hospital, where she spent one night. As a result of the assault, S.D. suffered a 1.5 cm laceration to the back of her scalp, a fracture of her left orbital bone, loose teeth, and scratches on her hands.

After S.D. ran from Appellant, he walked toward the trolley tracks. Trolley operator John Johnson observed Appellant approach the tracks from a wooded area to the left of the tracks. They made eye contact. Mr. Johnson rang the bell and blew the horn to warn Appellant, but Appellant continued toward the tracks. Mr. Johnson applied the brakes and continued to ring the bell and blow the horn. Appellant walked into the path of the oncoming trolley and was struck. As a result of the impact, Appellant suffered severe injuries and has no memory of the assault.

During their investigation, police recovered Appellant's backpack on a hillside across from the trolley tracks. They obtained from or near Appellant's backpack a check for school lunches, a utility knife, a butcher's knife, and duct tape. Appellant suggested that the tools were for some remodeling work he had been helping a friend with after school.

Originally charged as an adult on December 10, 2007, the criminal court decertified Appellant's case and transferred jurisdiction to juvenile court on April 23, 2009. On May 12, 2009, Appellant was charged in a delinquency petition under the Juvenile Act, 42 Pa.C.S.A. §§ 6301–6357, with one count of criminal attempt to commit homicide, two counts of aggravated assault, and one count of unlawful restraint. After a pre-hearing conference on May 18, 2009, the juvenile court scheduled the case for adjudication on August 24, 2009.

After three days of testimony, the juvenile court found that the Commonwealth had “proven beyond a reasonable doubt ... the charges of criminal attempt homicide, aggravated assault causing bodily injury and unlawful restraint,” and it adjudicated Appellant delinquent. N.T., 8/27/09, at 17–18. The juvenile court deferred dispositionuntil October 6, 2009, and ordered a psychiatric evaluation.

After a lengthy dispositional hearing, the juvenile court entered an order committing Appellant to the Youth Development Center at New Castle. Order of Court, 10/6/09. On November 4, 2009, defense counsel, Patrick Thomassey, Esquire, filed an appeal of the October 6, 2009 order of adjudication and disposition on behalf of Appellant. While his appeal to this Court was pending, Appellant filed several requests for a remand to create a record on his claims of defense counsel's ineffective assistance. We granted Appellant's request on August 31, 2010, remanding for an evidentiary hearing before the juvenile court and relinquishing jurisdiction. As ordered, the juvenile court held a hearing on December 1, 2010, and denied Appellant's claims the following month. This timely appeal followed.

Appellant presents the following questions for our consideration:

1. Did [defense] counsel render ineffective assistance in failing to take any action to have Appellant declared incompetent to stand trial and did the [juvenile] court err in failing to inquire sua sponte into Appellant's competency to stand trial where Appellant's severe brain damage completely prevented him from assisting counsel in his defense?

2. Did [defense] counsel render ineffective assistance in failing to present available evidence of Appellant's good character as he himself conceded, did the lower court manufacture a strategic reason for counsel's omission that counsel himself disavowed and which made no sense anyway, and did the lower court apply an erroneous standard of review on this claim what [sic] it found that character evidence would not have changed its fact-finding and thereby conflated its earlier role as fact-finder with its present role as post-verdict determiner of legal error?

3. Did [defense] counsel render ineffective assistance in failing to object to the trial court's error in manufacturing evidence, which the court considered dispositive, that Appellant was hit by the train after the complainant told police that he had threatened to jump in front of a train where there exists no record support for this finding, and in failing to present a more compelling case that Appellant was struck by the train before the complainant met with police?

4. Did the Commonwealth violate its discovery obligations and Appellant's due process rights under Brady v. Maryland and Giglio v. United States and their progeny by failing to disclose evidence that the complainant had retained civil counsel before trial to seek money damages from Appellant, and (in the alternative) did [defense] counsel render ineffective assistance in failing to investigate and present this evidence?

5. Did the trial court err in manufacturing evidence that Appellant threatened to kill the complainant when no such evidence was ever introduced, and was [defense] counsel ineffective for failing to object or correct the court when she relied so heavily on this mistaken understanding of the record?

6. Was the evidence sufficient to sustain the adjudication for attempted murder?

7. Did [defense] counsel render ineffective assistance in failing to object to (a) the trial court's dispositional conclusion, reached without any record support and in the face of overwhelming evidence to the contrary, that the complainant will “never heal” and that her injuries will be “long-term”; and (b) the trial court's reliance in fashioning a disposition for Appellant on the failure of his parents to express appropriate concern for the complainant?

8. With respect to the lower court's dispositional review orders, did the trial court violate the jurisdictional limitations of her dispositional authority, commit error and/or abuse her discretion by repeatedly finding that Appellant must accept the validity of the adjudication as part of his rehabilitation and treatment where at all times Appellant had permanent amnesia regarding all relevant events and was prosecuting this appeal in which he challenges the validity of that adjudication?

9. Is Appellant entitled to relief as a result of the cumulative impact of each of these errors?

Appellant's Brief at 3–4 (renumbered for ease of review; footnote omitted). ²

In the case at hand, Appellant raises several claims of juvenile court error and ineffective assistance of counsel.³ In a juvenile proceeding, the hearing judge sits as the finder of fact. In re A.D., 771 A.2d 45, 53 (Pa.Super.2001) (citation omitted). The weight to be assigned the testimony of the witnesses is within the exclusive province of the fact finder. Id. Our standard of review of dispositional orders in juvenile proceedings is well settled:

The Juvenile Act grants broad discretion to the court when determining an appropriate disposition. We will not disturb a disposition absent a manifest abuse of discretion. In re R.D.R., 876 A.2d 1009, 1013 (Pa.Super.2005) (internal citation omitted). Moreover, “[a] petition alleging that a child is delinquent must be disposed of in accordance with the Juvenile Act. Dispositions which are not set forth in the Act are beyond the power of the juvenile court.” In re J.J., 848 A.2d 1014, 1016–17 (Pa.Super.2004) (citation omitted).

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