J-S45024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.D., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: D.D., A MINOR

No. 2006 MDA 2014

Appeal from the Dispositional Order of October 20, 2014

In the Court of Common Pleas of Dauphin County

Juvenile Division at No.: CP-22-JV-0000471-2014

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

MEMORANDUM BY WECHT, J.: FILED OCTOBER 06, 2015

D.D., a minor, appeals the October 20, 2014 dispositional order. We 

affirm. 

The juvenile court set forth the following factual and procedural history 

of this case:

On June 7, 2014, [C.S.] and [D.D.] were at the park located on 

Radner Street, [in Dauphin County, Pennsylvania. C.S.] testified 

that he and [D.D.] were acquaintances and did not have plans to 

meet up at the park. Once at the park, [D.D.] and [C.S.] began 

to slap box with each other. [C.S.] testified that slap boxing is a 

form of playing similar to [horseplay.] After some time of 

playing slap box, [D.D.] began to choke [C.S.] and put him in a 

headlock. 

After successfully removing himself from the headlock, [C.S.] 

punched [D.D. D.D.] testified that, in addition to [C.S.,] a friend 

of [C.S.’] punched [D.D.] After receiving a punch, [D.D.] fell 

back onto a bench and he and [C.S.] began to fight. Following 

the punch from [C.S., D.D.] proceeded to grab [C.S.’] head with 

both of his hands and bite [C.S.’] nose. [C.S.] testified that 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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[D.D.] continued to bite his nose even after [C.S.] was no longer 

touching [D.D.] [D.D.] bit [C.S.’] nose until the tip came off and 

the tip was in [D.D.’s] mouth. [D.D.] testified that he spit the 

tip out of his mouth. After [D.D.] spit the tip of [C.S.’] nose out 

of his mouth, [D.D.] released [C.S. D.D.] testified that he then 

ran away and called his mother, but not the police. 

A bystander gave [C.S.] the tip of his nose in a bag and [C.S.] 

was driven to the hospital. [C.S.] testified that his mother took 

photographs of his injury shortly after it occurred as well as 

during the healing process. 

[C.S.’] initial visit to the hospital was about two weeks. 

Additionally, [C.S.’] injury required two plastic surgeries as well 

as skin grafting on the forehead. [C.S.] testified that he was in 

excruciating pain following the two surgeries and had a third 

surgery scheduled [at the time of the hearing.] Additionally, 

[C.S.,] who is a section leader for his high school’s drum line, 

testified that he was unable to attend band camp that summer 

. . . because he needed to visit the doctor every other day to get 

the facial wrap from his surgeries changed. 

Juvenile Court Opinion (“J.C.O.”), 2/23/2015, at 2-3 (citations to the 

certified record omitted).

As a result of these events, the Commonwealth filed a delinquency 

petition against D.D. alleging that he committed aggravated assault.1 On 

October 24, 2014, following a hearing, the juvenile court adjudicated D.D. 

delinquent of aggravated assault, and placed him on probation. On October 

29, 2014, D.D. timely filed a post-dispositional motion, wherein he argued 

that “[t]he verdict [was] against the weight of the evidence.” See D.D.’s 

Post-Dispositional Motion, 10/29/2014, at 2 (unnumbered). 

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1 18 Pa.C.S. § 2702(a)(1). 
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On November 26, 2014, before the juvenile court had ruled upon his 

motion, D.D. filed a notice of appeal. On December 15, 2014, D.D. filed with 

this Court an application for remand pending the resolution of his postdispositional motion. We directed D.D. to file with the juvenile court a 

praecipe for entry of an order denying his post-dispositional motion by 

operation of law. D.D. complied, and the juvenile court entered such an 

order on January 9, 2015. Accordingly, we treat D.D.’s notice of appeal as if 

he had filed it on January 9, 2015. See Pa.R.A.P. 905(a)(5) (“A notice of 

appeal filed after the announcement of a determination but before the entry 

of an appealable order shall be treated as filed after such entry and on the 

day thereof.”). D.D. filed a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b) on February 2, 2015, and the juvenile 

court filed a Pa.R.A.P. 1925(a) opinion on February 23, 2015. 

D.D. presents one issue for our consideration: “Whether the [juvenile] 

court erred in denying [D.D.’s] post-dispositional motion where the 

adjudication of delinquency was against the weight of the evidence so as to 

shock one’s sense of justice where [D.D.] acted out of self-defense?” Brief 

for D.D. at 5. 

Appellate review of a challenge to the weight of the evidence entails 

review of the exercise of discretion, not of the underlying question of 

whether the adjudication itself was against the weight of the evidence. 

Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). Because the 

juvenile court had the opportunity to see and hear the evidence presented, 
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we give the utmost consideration to the findings and reasons advanced by 

the judge when reviewing a determination that the verdict is not against the 

weight of the evidence. Commonwealth v. Farquharson, 354 A.2d 545 

(Pa. 1976). In effect, “the [juvenile] court’s denial of a motion for a new 

trial based on a weight of the evidence claim is the least assailable of its 

rulings.” Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011). 

This does not mean that the juvenile court’s discretion to grant or 

deny a motion for a new trial based upon a challenge to the weight of the 

evidence is unrestrained. Our Supreme Court has explained:

The term “discretion” imports the exercise of judgment, wisdom 

and skill so as to reach a dispassionate conclusion within the 

framework of the law, and is not exercised for the purpose of 

giving effect to the will of the judge. Discretion must be 

exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. Discretion is 

abused where the course pursued represents not merely an error 

of judgment, but where the judgment is manifestly unreasonable 

or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (quoting Coker 

v. S.M. Flickinger Co., 625 A.2d 1181, 1184-85 (Pa. 1993)). 

In framing his issue as a challenge to the weight of the evidence, D.D. 

conflates two distinct claims with different standards of review. In Widmer, 

our Supreme Court highlighted the distinction between a challenge to the 

sufficiency of the evidence, which contests the quantity of the evidence 

presented at trial, and a challenge to the weight of the evidence, which 

attacks the quality of that evidence. 
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The distinction between these two challenges is critical. A claim 

challenging the sufficiency of the evidence, if granted, would 

preclude retrial under the double jeopardy provisions of the Fifth 

Amendment to the United States Constitution, and Article I,

Section 10 of the Pennsylvania Constitution, whereas a claim 

challenging the weight of the evidence if granted would permit a 

second trial. 

A claim challenging the sufficiency of the evidence is a question 

of law. Evidence will be deemed sufficient to support the verdict 

when it establishes each material element of the crime charged 

and the commission thereof by the accused, beyond a 

reasonable doubt. Where the evidence offered to support the 

verdict is in contradiction to the physical facts, in contravention 

to human experience and the laws of nature, then the evidence 

is insufficient as a matter of law. When reviewing a sufficiency 

claim the court is required to view the evidence in the light most 

favorable to the verdict winner giving the prosecution the benefit 

of all reasonable inferences to be drawn from the evidence. 

A motion for new trial on the grounds that the verdict is contrary 

to the weight of the evidence, concedes that there is sufficient 

evidence to sustain the verdict. Thus, the trial court is under no 

obligation to view the evidence in the light most favorable to the 

verdict winner. An allegation that the verdict is against the 

weight of the evidence is addressed to the discretion of the trial 

court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. A trial judge must 

do more than reassess the credibility of the witnesses and allege 

that he would not have assented to the verdict if he were a 

juror. Trial judges, in reviewing a claim that the verdict is 

against the weight of the evidence do not sit as the thirteenth 

juror. Rather, the role of the trial judge is to determine that 

notwithstanding all the facts, certain facts are so clearly of 

greater weight that to ignore them or to give them equal weight 

with all the facts is to deny justice. 

Id. at 751-52 (citations, footnotes, and quotation marks omitted). 

D.D. maintains that “he was justified in biting [C.S.’] nose where [he] 

believed such force was immediately necessary to protect himself against 
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the assault by [C.S.]” Brief for D.D. at 10. D.D.’s argument is without merit 

insofar as he contests the sufficiency of the evidence that the 

Commonwealth presented in order to disprove his claim of self-defense. In 

pursuing only a challenge to the weight of the evidence, D.D. concedes that 

the Commonwealth offered evidence sufficient to sustain his adjudication for 

aggravated assault.2 See Widmer, 744 A.2d at 752. Consequently, our 

review is limited to whether the juvenile court abused its discretion in 

determining that D.D.’s delinquency adjudication was not contrary to the 

weight of the evidence. 

At his adjudication hearing, D.D. argued that his assault on C.S. was 

an act of desperation, which “he felt he needed to take to save his [own] 

life.” Notes of Testimony, 8/20/2014, at 32. In adjudicating D.D. 

delinquent of aggravated assault, the juvenile court clearly indicated that it 

found D.D.’s self-serving testimony to be incredible. See id. at 34 (“You 

know, I’m listening to this and thinking, ‘Well, if [D.D.] was able to bite 

[C.S.’] nose and run away, and he had him subdued, why didn’t [D.D.,] prior 

to that, get up and run away?’”). On the other hand, the juvenile court 

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2

In his 1925(b) statement, D.D. asserted only that his “adjudication of 

delinquency was against the weight of the evidence so as to shock one’s 

sense of justice.” See D.D.’s Concise Statement of Errors Complained of on 

Appeal, 2/2/2015, at 1 (emphasis added). Therefore, he has waived his 

challenge to the sufficiency of the evidence. See Commonwealth v. Lord, 

719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b) 

statement will be deemed waived.”); Pa.R.A.P. 1925(b)(4)(vii). 
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found credible C.S.’ testimony that the “play fighting” escalated when D.D. 

began choking him. Id. at 33. 

The record is devoid of any indication that the juvenile court acted in 

an unreasonable or arbitrary manner. Nor has D.D. alleged that the juvenile 

court acted with partiality, prejudice, bias, or ill will. The juvenile court, as 

the fact-finder, was free to evaluate the testimony of the witnesses and to 

determine the weight that should be assigned to the evidence. 

Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995). Accordingly, 

DD.’s challenge to the weight of the evidence must fail. 

Order affirmed. 

Judge Bowes joins the memorandum.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2015