J.S45037/15

 2015 PA Super 229

IN THE INTEREST OF: T.L.B., A MINOR, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

APPEAL OF: :

COMMONWEALTH OF PENNSYLVANIA :

: No. 1845 MDA 2014

Appeal from the Dispositional Order October 7, 2014

In the Court of Common Pleas of York County 

Criminal Division No(s).: CP-67-JV-0000201-2014

BEFORE: BOWES, WECHT, and FITZGERALD,*JJ.

OPINION BY FITZGERALD, J.: FILED NOVEMBER 02, 2015

The Commonwealth appeals from the dispositional order entered in the 

York County Court of Common Pleas, dismissing the juvenile complaint 

against Appellee, T.L.B. In this matter, Appellee admitted to the two felony 

charges of indecent assault against a victim less than thirteen years of age1

(“indecent assault”), but the juvenile court found he is not in need of 

treatment, supervision, or rehabilitation. We hold the juvenile court did not 

abuse its discretion, where the court credited Appellee’s therapist’s 

testimony that at the time of the dispositional hearing, Appellee’s treatment 

no longer concerned his sexual behavior and addressed only other mental 

health concerns, Appellee’s treatment was progressing well, he was not 

currently in need of additional treatment, and he was expected to 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3126(a)(7).
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successfully complete his one-year treatment program. Accordingly, we 

affirm.

The underlying incident occurred on September 15, 2013. Appellee 

was twelve years old at the time and he admitted to touching his twenty-two 

month old nephew’s and four-year old niece’s genitals while bathing them.2 

On October 1, 2013, Appellee was adjudicated dependent and placed in the 

legal and physical custody of the York County Children, Youth and Families 

agency (“CYF”). In the dependency matter, the court ordered Appellee to 

comply with treatment with Diakon SPIN Services program (“Diakon”).3

On April 23, 2014, the Commonwealth filed the instant juvenile 

complaint against Appellee for the bathing incident.4 At the time, Appellee 

was living with a foster mother. On June 25th, Appellee appeared before the 

juvenile court and admitted to two charges of indecent assault on a victim 

 

2 We glean the ages of the victims from the Commonwealth’s brief. See

Commonwealth’s Brief at 5.

3 The Hon. Andrea Marceca Strong presided over both the instant 

delinquency matter and Appellee’s dependency matter.

4 The juvenile petition also alleged two counts each of indecent assault 

against a victim less than thirteen years of age, involuntary deviate sexual 

intercourse with a victim less than thirteen, aggravated indecent assault of a 

victim less than thirteen, sexual assault, and indecent assault without 

consent. When Appellee admitted to indecent assault at the June 25, 2014 

hearing, the Commonwealth withdrew the remaining charges. N.T., 

6/25/14, at 3.
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less than thirteen years old.5 Both counts were graded as felonies of the 

third degree because there was a course of conduct.6 See 18 Pa.C.S. § 

3126(b)(3)(ii); N.T., 6/25/14, at 3, 23. The juvenile court deferred 

adjudication pending the completion of a case assessment by the Juvenile 

Probation department. N.T., 6/25/14, at 24. The court further ordered 

Appellee to remain in the custody of CYF.

The court conducted the adjudication hearing on October 7, 2014.7 It 

noted that because the charges were felonies of the third degree, there was 

a presumption for adjudication, which “shifts the burden to” Appellee. N.T., 

10/7/14, at 10. The sole witness was Heather Gorr, Appellee’s therapist at 

Diakon.8 At this juncture, we review her testimony in detail.

Gorr testified to the following on direct examination. Appellee began 

 

5 See 18 Pa.C.S. § 3126(a)(7) (“A person is guilty of indecent assault if [he] 

has indecent contact with the complainant, [or] causes the complainant to 

have indecent contact with the person . . . for the purpose of arousing 

sexual desire in the person or the complainant and . . . the complainant is 

less than 13 years of age[.]”).

6 The record does not indicate any additional instances of indecent assault 

aside from the September 15, 2013, bathing incident. Nevertheless, 

Appellee’s counsel agreed to the felony-three grading “for a continuing 

course of conduct.” N.T., 6/25/14, at 3.

7 At the time of this hearing, Appellee was thirteen years old and living with 

the same foster mother.

8 Gorr testified she was a counselor in the “Diakon Specialized In-Home 

Program, which focuses on sex offender treatment for juveniles.” N.T., 

10/7/14, at 12.
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treatment approximately eight months earlier, in February of 2014, before 

the filing of the instant juvenile petition.9 Id. at 13-14. Appellee was 

referred to Diakon by CYF “after [it] identified sexual acting out behaviors.” 

Id. at 19.

Gorr also stated Appellee “has reported being a victim of sexual 

abuse,” and that the alleged perpetrator, his father, did not agree to the 

police department’s request for a polygraph test. Id. at 21-22. We note the 

juvenile probation officer’s case assessment also stated Appellee “made 

allegations of abuse against his father, his father has not participated in 

visits or counseling[, and instead] feels he is better off giving [Appellee] the 

space he’s requested.” Juvenile Probation Officer’s Juvenile Case 

Assessment, 10/7/14, at 1. The assessment further stated “that previous 

abuse allegations by [Appellee] against his father [were] unfounded.” Id. 

Finally, the juvenile court noted Appellee has been “rat[ed] on the autism 

spectrum[.]” N.T., 10/7/14, at 36.

At the hearing, Gorr further testified to the following. Appellee 

receives “counseling or therapy multiples times a week,” consisting of “at 

least one individual session, one family session, and one group therapy 

session,” totaling ten to fifteen hours per week. Id. at 13. Diakon and CYF 

 

9 Gorr opined the bathing incident indicated “a mental health concern” and 

that Diakon “did not feel that it would be appropriate for adjudication.” N.T., 

10/7/14, at 14. Nevertheless, Appellee admitted to the indecent assault 

offenses. 
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were working “very well” together on Appellee’s case. Id. at 16. Appellee 

was “authorized” for treatment through February of 2015, and she 

“fores[aw] him being successfully discharged.” Id. Gorr recommended 

Appellee “continue with the Diakon SPIN program until his authorization 

would be complete.” Id. at 30.

Gorr further opined to the following. Appellee exhibited “much more 

of a steady progress in the last four months or so,” he did “very, very well in 

the community,” and “there have been no sexual acting out behaviors in 

over a year.” Id. at 13-14. Six months earlier, “[t]here was concern . . . 

related to [Appellee’s] mental health, not related to his sexual behaviors,” 

but Gorr currently had no “concerns that would necessitate removal or a 

higher level of service.” Id. at 16, 18. Appellee was receiving an 

“appropriate level of services,” and additional treatment “would be too much 

therapy and . . . would muddy the waters [sic].” Id. at 18. On crossexamination, Gorr reiterated Appellee was “receiving a very high level of 

service[s]” and “additional therapeutic services [were not] warranted at this 

time.” Id. at 22. 

On direct examination, Gorr opined Appellee showed “a low risk of reoffense.” Id. at 15. On cross-examination, the Commonwealth asked her 

whether she was surprised by a psychosexual evaluation, conducted 
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approximately one year earlier,10 which stated Appellee was a “moderate 

risk for sexual reoffending.” Id. at 22. Gorr responded:

A psychosexual is a snapshot in time when we gather data 

from a very brief period of time. It’s also based on selfreport, familial report, if other agencies are involved, and 

so, again, we are looking at one period of time. He has 

been successful in my treatment, so no, therapeutically 

this makes sense in my opinion.

Id. at 22-23. On redirect examination, Gorr reiterated that Appellee 

“continues to be reassessed,” she “view[ed] him as a low risk,” and “the 

recidivism rate has reduced because of his successful completion and 

treatment.” Id. at 26, 28.

Appellee’s counsel argued Gorr’s testimony overcame the presumption 

of adjudication for the felony charges, Appellee “is receiving the level of 

services that he needs,” and “[h]e has been successful for months . . . in the 

treatment.” Id. at 31. The Commonwealth responded, “Just because the 

juvenile is already receiving some sort of treatment through the Diakon SPIN 

Program doesn’t . . . automatically mean[ ] that he doesn’t need to be 

adjudicated. There are principles of accountability and community safety 

that need to be addressed.” Id. at 33.

The juvenile court found Appellee was not in need of treatment, 

supervision, or rehabilitation. Id. at 36. It thus dismissed the juvenile 

 

10 The adjudication transcript indicates the psychosexual evaluation was 

conducted by Hugh Smith on October 15, 2013. N.T., 10/7/14, at 26.
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petition, but directed Appellee to “remain in . . . placement.” Id. at 37. The 

court then immediately proceeded to a review hearing in the dependency 

matter. Id. at 39. The Commonwealth timely appealed and, at the court’s 

direction, timely filed a Pa.R.A.P. 1925(b) statement.

Preliminarily, we consider the juvenile court’s suggestion that the 

Commonwealth’s issue should be found waived for failure to identify the 

issue with sufficient detail in its Rule 1925(b) statement. See Juvenile Ct. 

Op., 12/1/14, at 2. The Commonwealth’s Rule 1925(b) statement raised 

one issue as follows: “The juvenile court erred when it denied the petition to 

adjudicate [Appellee] delinquent after [he] was found to have committed a 

felony graded indecent assault upon a minor victim.” Commonwealth’s 

Statement of Matters Complained of on Appeal, 11/20/14.

“The Statement shall concisely identify each ruling or error that the 

appellant intends to challenge with sufficient detail to identify all pertinent 

issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the 

Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).

While we would agree the Commonwealth’s Rule 1925(b) statement 

could have specifically challenged the finding that Appellee was not in need 

of treatment, supervision, or rehabilitation, we decline to find waiver. In this 

case, Appellee admitted he committed the delinquent acts, and the sole 

question before the court was whether he was in need of treatment, 
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supervision, or rehabilitation. Furthermore, the juvenile court’s opinion aptly 

addressed the issue now raised in the Commonwealth’s brief—whether the 

evidence established Appellee was in need of further treatment. See 

Commonwealth v. Laboy, 594 Pa. 411, 415, 936 A.2d 1058, 1060 (2007) 

(declining to find waiver for perceived failure to adequately develop 

sufficiency of evidence claim where matter was “relatively straightforward 

drug case,” evidentiary presentation spanned “mere thirty pages of 

transcript,” and trial “court readily apprehended [defendant’s] claim and 

addressed it in substantial detail”).

The Commonwealth argues the court abused its discretion in finding 

Appellee was not in need of treatment, rehabilitation, or supervision. In 

support, it cites 42 Pa.C.S. § 6341(b)’s presumption for delinquency in 

felony offenses. The Commonwealth also advances the following arguments. 

Appellee’s therapist, Gorr, testified he should continue receiving “a high level 

of services.” Commonwealth’s Brief at 10. Indeed, the juvenile court 

required Appellee to “comply with the Diakon sexual offender treatment 

program,” and this order is contrary to its finding that he was not in need of 

treatment. Id. at 10-11. Additionally, the juvenile court’s finding that 

Appellee “‘completed’ his offense related treatment is . . . not supported by 

the record, when the entirety of his mental health related treatment is 

related to preventing sexual offenses.” Id. at 12. The juvenile court also 

“disregard[ed] the separate role and capabilities of Juvenile Probation” and 
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CYF, where “the goal of delinquency is the protection of the public interest” 

in addition to the best interest of the child. Id. The Juvenile Probation 

department’s “YLS assessment” determined Appellee was at moderate risk 

for reoffending. Finally, the Commonwealth asserts the juvenile court 

exhibited bias and ill will, as its opinion stated the Commonwealth “[i]n this 

matter and similar cases . . . has been seeking adjudications for purely 

punitive purposes[.]” Id. at 14. We find no relief is due.

We note the relevant standard of review:

The Juvenile Act grants juvenile courts broad discretion 

when determining an appropriate disposition. . . . We will 

disturb a juvenile court’s disposition only upon a showing 

of a manifest abuse of discretion.

Interest of C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014) (citations omitted).

In Commonwealth v. M.W., 641 Pa. 633, 39 A.3d 958 (2012), the 

Pennsylvania Supreme Court held an adjudication of delinquency requires 

both findings “(1) that the juvenile has committed a delinquent act; and (2) 

that the juvenile is in need of treatment, supervision, or rehabilitation.” Id.

at 634, 39 A.3d at 959.

This is so even where the delinquent act constitutes a 

felony because, while the commission of such an act 

presumptively supports a finding that the juvenile is in 

need of treatment and supervision . . . the juvenile court 

must still make that finding after allowing for other 

evidence. 42 Pa.C.S.A. § 6341(b) (“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.”).
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Id. at 646 n.9, 39 A.3d at 966 n.9.

In M.W., the Commonwealth filed a robbery delinquency petition 

against the juvenile. Id. at 635, 39 A.3d at 959. The juvenile court found 

he committed the acts, placed him on interim probation, but deferred 

adjudication. Id. “Later that same day,” another judge adjudicated the 

juvenile delinquent on an unrelated theft delinquency petition and 

committed him to treatment, rehabilitation, and supervision. Id. at 635, 39 

A.3d at 959-60. Subsequently, the first judge discharged the robbery 

delinquency petition, “noting [the juvenile] ‘will be adjudicated on the [theft] 

petition [and] will still receive treatment and supervision.’” Id. at 635, 39 

A.3d at 960. The Commonwealth appealed. Id.

Much of the Pennsylvania Supreme Court’s decision was addressed to 

its holding, “that under the Juvenile Act, in order to adjudicate a child 

delinquent, the juvenile court must (1) determine that the juvenile has 

committed a delinquent act, and (2) determine that the juvenile requires 

treatment, supervision, or rehabilitation.” See id. at 646, 39 A.3d at 966. 

It then remanded for the juvenile court to determine whether the juvenile “is 

in need of treatment, supervision, or rehabilitation.” Id. We note the M.W.

decision, however, did not discuss the juvenile court’s discharge of the 

robbery petition on the rationale that the juvenile would receive treatment 

and supervision through the theft adjudication. See id. at 635, 646, 39 

A.3d at 960, 966. Instead, the Court merely directed that on remand, the 
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juvenile court may enter an adjudication of delinquency only if it found the 

juvenile in need of treatment, supervision, or rehabilitation. Id. at 646, 39 

A.3d at 966. “If, however, the court concludes [the juvenile] is not in need 

of treatment, supervision, or rehabilitation, it should dismiss the proceeding, 

terminate jurisdiction, and discharge” him. Id.

As stated above, “[t]he Juvenile Act grants juvenile courts broad 

discretion when determining an appropriate disposition,” and in the case sub 

judice, we hold the juvenile court did not abuse its discretion. See C.A.G., 

89 A.3d at 709. At the adjudication hearing, Appellee’s counsel and the 

juvenile court both addressed the statutory presumption for adjudication for 

felony offenses. See 42 Pa.C.S. § 6341(b); N.T., 10/7/14, at 10, 31, 35; 

see also Juvenile Ct. Op. at 3. In its opinion, the juvenile court found 

Appellee had been in treatment for several months before the adjudication 

and disposition hearings, he “has made progress in his treatment,” “his 

treatment no longer focuses on the delinquent act, but has progressed . . . 

to focus on other mental health concerns,” and he “completed all treatment 

relevant to the delinquent act.” Juvenile Ct. Op. at 4.

We reject the Commonwealth’s argument that at this stage, the 

juvenile court was required to consider community protection. The 

Commonwealth cites the following passage in In re R.D.R., 876 A.2d 1009 

(Pa. Super. 2005):

[T]he Juvenile Act requires the juvenile court to consider 

the protection of the public interest, and to devise a 
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sentence best suited to the child’s treatment, supervision, 

rehabilitation, and welfare, under the individual 

circumstances of each child’s case.

Commonwealth’s Brief at 13 (quoting R.D.R., 876 A.2d at 1014). However, 

this statement addresses the factors in sentencing a juvenile who has 

already been adjudicated delinquent. R.D.R., 876 A.2d at 1014 (addressing 

juvenile’s argument that court ordered him to pay fines without considering 

his ability to pay). Instead, 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. M.W., 614 Pa. at 634-35, 

642, 39 A.3d at 959, 964.

We also disagree with the Commonwealth’s summation that M.W.

“held that . . . the fact that the juvenile is already in treatment is an 

improper basis for denying adjudication.” See Commonwealth’s Brief at 11. 

A careful reading of M.W. reveals no articulation of such a holding. 

Although the M.W. Court remanded for the juvenile court to determine 

whether the juvenile was in need of treatment, the Supreme Court did not 

discuss the juvenile court’s rationale for discharging the robbery petition—

that the juvenile would receive treatment and supervision through the theft 

adjudication. See M.W., 614 Pa. at 635, 646, 39 A.3d at 960, 966. 

Nevertheless, we may distinguish the facts of M.W. from those in this case. 

In M.W., the juvenile was ordered to undergo treatment as a result of his 

delinquency adjudication for theft, and the juvenile court found no additional 
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rehabilitation for robbery was necessary. Id. at 634, 39 A.3d at 959-60. In 

this case, Appellee was ordered to comply with treatment at Diakon in his 

dependency matter, and that treatment, by the time of the dispositional 

hearing, no longer addressed his sexualized behavior. Instead, his 

treatment had evolved to concern only his mental health generally. 

Furthermore, the juvenile court credited Gorr’s testimony that he had not 

acted out in sexualized behavior in more than one year.

Finally, we address the Commonwealth’s contention that the juvenile 

court acted with bias and ill will. The Commonwealth refers to the following 

statement in the court’s opinion: 

It is important to note this Court’s concern with [the] 

delinquency process in York County. Often, the 

Commonwealth, in this matter and other similar cases 

brought before it, has been seeking adjudications for 

punitive purposes by requesting an adjudication and 

disposition that ultimately does nothing more than label 

the juvenile and demand he pay costs and fees.

See Juvenile Ct. Op. at 4. In light of the juvenile court’s thorough 

discussion of the evidence in this case, we do not find it acted with bias or ill 

will. As the juvenile court did not abuse its discretion in finding Appellee was 

not in need of treatment, rehabilitation or supervision, we affirm its order 

dismissing the juvenile petition.

Order affirmed.