J-A04028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INT. OF: C.N.S., A MINOR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1104 MDA 2017

Appeal from the Order Entered May 10, 2017

In the Court of Common Pleas of Mifflin County Juvenile Division at 

No(s): CP-44-JV-0000008-2017

BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.: FILED MARCH 13, 2018

Appellant C.N.S. appeals from the dispositional order1 entered after his 

adjudication of delinquency for acts constituting indecent assault (without 

consent) and indecent assault (complainant less than 13 years of age).

2

Appellant challenges the sufficiency and weight of the evidence. We affirm.

The juvenile court aptly summarized the evidence presented at the 

adjudication hearing.

The matter before this [c]ourt involves allegations of indecent 

assault by [Appellant] against the victim . . . on multiple 

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant purported to appeal from the order denying his post-dispositional

motions. However, an appeal properly lies from the dispositional order made 

final by the denial of post-disposition motions, and we have amended the 

caption accordingly. See In Interest of N.C., 171 A.3d 275, 278 n.1 (Pa. 

Super. 2017).

2 18 Pa.C.S. § 3126(a)(1), (7). 
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occasions. [Appellant] was born in March of 2004. [The victim]

was born in August of 2008. Both the [Appellant] and [the victim] 

were under 13 years of age at the time the alleged indecent 

assault occurred. [Appellant] and [the victim] share the same 

biological father (Father).

The first instance of alleged assault occurred in May of 2015 at 

the home of [Father]. Initially, [Appellant], [Father], and 

[Appellant’s] step mother were watching a movie while [the 

victim] played in a tent in an adjacent room of the house. At some 

point, [Appellant’s] Father and step mother fell asleep for a period 

of approximately 15-20 minutes. During this time, [Appellant] left 

the room where Father and step mother were asleep and joined 

[the victim] in the adjacent room. According to the testimony of 

[the victim], the two began playing a game and eventually 

[Appellant] did “inappropriate stuff” to her while inside the tent. 

[The victim] testified that at one point, while she was laying on 

her back, [Appellant] pulled her shorts down and began to lick her 

“vulva” with his tongue. [The victim] clarified that her “vulva” was 

where she “peed from.” According to [the victim], [Appellant] then 

proceeded to get on top of her and that his “private parts” touched 

her “private parts”, although only on the outside. [The victim] 

denied that any part of [Appellant’s] body ever penetrated her 

private parts. After [Appellant] left the home, [the victim] relayed 

what had happened in the tent to her mother, [R.S.].

The second instance of alleged abuse occurred at the home of 

the minor children’s grandmother, [N.S.] [the victim] testified that 

during a visit, she and [Appellant] were playing behind the couch 

in the living room when he began kissing her on the lips. [The 

victim] denied seeing [Appellant’s] private parts on this occasion 

and denied any inappropriate touching. Both [Appellant] and [the 

victim] were fully clothed during this incident. [The victim] stated 

that [Appellant] eventually asked her, “will you marry me?” to 

which she responded “no.” [N.S.] eventually demanded the 

children come out from behind the couch. She denied seeing any 

inappropriate behavior as the couch and a quilting rack obstructed 

her view.

The third instance of alleged abuse also occurred at the home 

of [N.S.]. [The victim] testified that, at the time of this incident, 

she and [Appellant] were in the yard and were secluded behind a 

“weed patch” which obstructed their view of the house. [The 

victim] stated that here, again, [Appellant] removed her pants 
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and licked her “vulva” with his tongue while she was lying on her 

back. However, during this incident, [the victim] alleged that 

[Appellant] also removed his pants and asked her to lick his 

private part. [The victim] refused and denied that any other 

inappropriate touching occurred during this incident.

The fourth and final instance of alleged abuse again occurred 

at the home of [N.S.]. [The victim] alleged that she was on a 

couch in the living room watching television. [Appellant] was 

seated nearby on the floor. [Appellant] proceeded to pull her off 

the couch and onto his lap where he began kissing her. [The 

victim] denied any other inappropriate touching during this 

incident.

In all instances of alleged abuse, [the victim] denied that any 

part of [Appellant’s] body penetrated her. [The victim] also stated 

that after each instance of abuse, [Appellant] told her not to tell 

anyone what happened but that she did eventually tell her 

parents. Testimony from [Father and R.S.] revealed that they 

contacted Children and Youth Services and the Pennsylvania State 

Police following these incidents. None of the alleged instances of 

sexual abuse were witnessed by third parties who could either 

confirm or deny their validity but [Appellant] did admit on at least 

two separate occasions that sexual contact did occur.

Juvenile Ct. Op., 4/11/17, at 1-3.

At the conclusion of the adjudication hearing on March 31, 2017, the 

parties stipulated that there was insufficient evidence to support the alleged 

acts constituting sexual assault and aggravated indecent assault, and the 

juvenile court granted Appellant’s motion to dismiss those allegations. 

On April 11, 2017, the juvenile court entered an order and opinion 

adjudicating Appellant delinquent for acts constituting indecent assault

(without consent) and indecent assault (complainant under 13 years of age).

Based on the victim’s description of the first incident, the court concluded that 

there was “sufficient evidence to conclude that indecent assault occurred 
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involving [Appellant’s] tongue and the victim’s genitalia on at least one 

occasion.” Id. at 5. The court further credited the victim’s testimony that 

Appellant inappropriately kissed her in the second and fourth incidents. 

However, with respect to the first incident, the juvenile court noted that 

it could not “definitively say that [Appellant] touched the victim’s genitalia 

with his genitalia,” as the victim seemed “less certain” with regard to that 

portion of her testimony. Id. at 5. Additionally, given the fact that other 

children were nearby during the alleged incident at the weed patch in the third 

incident, the court was “not convinced that this encounter could have taken 

place without drawing the attention of other nearby individuals.” Id. As a 

result, the court rejected the victim’s testimony with regard to the third 

alleged incident at the “weed patch.” 

A dispositional hearing was subsequently held on May 10, 2017, at which 

point Appellant was placed in custody. On May 19, 2017, Appellant filed a 

post-dispositional motion, challenging, inter alia, weight of the evidence, 

which the court denied on June 13, 2017. Appellant timely filed a notice of 

appeal on July 12, 2017. Both Appellant and the juvenile court complied with 

Pa.R.A.P. 1925.

Appellant raises three questions for review,3 which we have reordered 

as follows:

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3 Appellant raised a fourth issue in his statement of questions raised on appeal, 

namely: “Did the [juvenile] court fail to enter a timely finding pursuant to 
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1. Did the Commonwealth present sufficient evidence to find, 

beyond a reasonable doubt, that [Appellant] engaged in a “course 

of conduct” by kissing [the victim] thereby increasing the grading 

of 18 Pa.C.S.A. § 3126(a)(7) from a misdemeanor of the 1st

degree to a felony of the 3rd [d]egree[?]

2. Can a juvenile, under the age of thirteen, be adjudicated 

delinquent of indecent assault, 18 Pa.C.S.A. § 3126(a)(7)?

3. Was the adjudication of delinquency for indecent assault, 18 

Pa.C.S.A. § 3126(a)(7)(F3) against the weight of the evidence?

Appellant’s Brief at 5 (some capitalization omitted).

In his first two arguments, Appellant challenges the sufficiency of the 

evidence supporting his adjudication of delinquency for indecent assault

(complainant less than 13 years of age). Our standard of reviewing a 

challenge to the sufficiency of evidence is as follows:

When a juvenile is charged with an act that would constitute a 

crime if committed by an adult, the Commonwealth must establish 

the elements of the crime by proof beyond a reasonable doubt. 

When considering a challenge to the sufficiency of the evidence 

following an adjudication of delinquency, we must review the 

entire record and view the evidence in the light most favorable to 

the Commonwealth.

In determining whether the Commonwealth presented 

sufficient evidence to meet its burden of proof, the test to be 

applied is whether, viewing the evidence in the light most

favorable to the Commonwealth, and drawing all reasonable 

inferences therefrom, there is sufficient evidence to find every 

element of the crime charged. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by wholly circumstantial evidence.

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Pa.R.Juv.P. 408A warranting discharge of [Appellant?]” Appellant’s Brief at 5. 

Appellant, however, has expressly withdrawn this claim for consideration. Id.

at 5, 28-29. Therefore, we will not address it. 
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The facts and circumstances established by the Commonwealth 

need not be absolutely incompatible with [the juvenile’s]

innocence. Questions of doubt are for the hearing judge, unless 

the evidence is so weak that, as a matter of law, no probability of 

fact can be drawn from the combined circumstances established 

by the Commonwealth. 

In re A.V., 48 A.3d 1251, 1252-53 (Pa. Super. 2012) (citation omitted). 

As an appellate court, we must review the entire record . . . and

all evidence actually received[.] [T]he trier of fact while passing 

upon the credibility of witnesses and the weight of the evidence 

produced is free to believe all, part or none of the evidence.

Because evidentiary sufficiency is a question of law, our standard 

of review is de novo and our scope of review is plenary.

In re C.R., 113 A.3d 328, 333-34 (Pa. Super. 2015) (citations and quotation 

marks omitted).

First, Appellant contends that the Commonwealth failed to establish that 

the two “kissing incidents” were sexual in nature. Appellant’s Brief at 19. 

Although Appellant concedes that a person’s mouth and lips are considered an 

intimate part of one’s body, Appellant’s conduct was mere familial affection. 

Id. Appellant thus asserts that the juvenile court erred in finding that his acts 

constituted felony-three indecent assault based on a course of conduct. Id.

at 11.

Section 3126 of the Crimes Code defines indecent assault, in relevant 

part, as follows:

A person is guilty of indecent assault if the person has indecent 

contact with the complainant, causes the complainant to have 

indecent contact with the person or intentionally causes the 

complainant to come into contact with seminal fluid, urine or feces 

for the purpose of arousing sexual desire in the person or the 

complainant and . . . the complainant is less than 13 years of 

age[.]
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18 Pa.C.S. § 3126(a)(7). “Indecent contact” is defined as “[a]ny touching of 

the sexual or other intimate parts of the person for the purpose of arousing 

or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101. 

Indecent assault - complainant under 13 is generally graded as a 

misdemeanor of the first degree. 18 Pa.C.S. § 3126(b)(3). However, the 

conduct constitutes a felony of the third degree if “[t]here has been a course 

of conduct of indecent assault by the person.” 18 Pa.C.S. § 3126(b)(3)(ii). 

This Court has construed a “course of conduct” as requiring proof of “multiple 

acts over time.” Commonwealth v. Kelly, 102 A.3d 1025, 1031 (Pa. Super. 

2014) (en banc) (interpreting the phrase as used in the corruption of minors 

statute, 18 Pa.C.S. § 6301(a)(1)(ii)). 

The juvenile court addressed Appellant’s claim as follows:

[T]he victim’s testimony at the Disposition Hearing held May 10, 

2017, established that the kissing incidents with [Appellant] were 

not mere familial affection. During said testimony, the victim 

displayed an understanding that touching the intimate parts of 

another was inappropriate and specifically referred to the contact 

between her and [Appellant] as “inappropriate stuff”. Further, the 

victim reported the sexual contact to her parents which indicates 

to this [c]ourt a desire for protection and prevention of further 

sexual contact. Finally, this [c]ourt heard testimony from . . . the 

victim’s therapist . . . , which indicated the victim likely suffers 

from Post-Traumatic Stress Disorder and that the emotional 

distress exhibited by the victim in response to the incidents with 

[Appellant] is typical of a victim of sexual abuse. As a result, this 

[c]ourt does not believe that the kissing incidents were mere 

familial affection.

Juvenile Ct. Order, 6/13/17, at 4. 

The juvenile court also concluded that
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while the incidents in which [Appellant] kissed the victim both 

occurred in the same general location . . . the incidents occurred 

at separate times and on separate occasions and were not part of 

the same incident. Therefore, there is sufficient evidence to 

establish a pattern of actions, composed of more than one act over 

a period of time[.]

Id. at 13. 

Following our review of the record, we find no error in the juvenile 

court’s conclusions. Viewing all of the evidence actually received in the light 

most favorable to the Commonwealth, and drawing all reasonable inferences 

therefrom, there was sufficient evidence for the court to find Appellant kissed 

the victim for the purposes of sexual arousal or gratification. Additionally, we 

note the record supports the court’s finding that Appellant licked the victim on 

or near her genitalia on at least one occasion. Given the clear sexual nature 

of that conduct, it was reasonable for the court to infer that the kisses between 

Appellant and the victim were of a sexual nature and adjudicate him 

delinquent for indecent assault. 

Moreover, because the evidence also established that Appellant engaged 

in two acts of kissing the victim for sexual purposes, there was a “course of 

conduct of indecent assault” as required by 18 Pa.C.S. § 3126(b)(3)(ii). Cf.

Kelly, 102 A.3d at 1031. Therefore, Appellant’s challenge to the sufficiency 

of the evidence supporting his adjudication for felony-three indecent assault

(complainant less than 13 years of age) fails. 

Appellant next contends that his adjudication cannot stand because an 

individual under 13 years old is incapable of predatory sexual conduct. In 
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support, Appellant relies on this Court’s holding in In re B.A.M., 806 A.2d 893

(Pa. Super. 2002). 

B.A.M. involved two eleven-year-old boys, B.A.M. and J., who rode their 

bikes into the woods. Id. at 893. Once there, they performed anal sex on 

one another. Id. at 893-94. At some point, J. got chewing gum on his penis.

Id. at 894. That evening, J.’s grandmother saw J. trying to remove the gum. 

J. told his grandmother that B.A.M. had forced him to participate in the sexual 

activity. Id. Following the incident, the Commonwealth filed a delinquency 

petition against only one of the boys, B.A.M.

The juvenile court adjudicated B.A.M. delinquent for acts constituting 

rape (victim under 13) and involuntary deviate sexual intercourse (IDSI)

(victim under 13), but dismissed the allegations regarding forcible compulsion 

and lack of consent. Id. B.A.M. appealed, contending that “an 11–year–old 

boy [should not be held] criminally responsible for having consensual sexual 

relations with another 11–year–old boy.” Id. On appeal, this Court reversed

B.A.M.’s adjudication.

In its analysis, the B.A.M. Court concluded there is “no legitimate

interest in prosecuting consensual activity between two children under 13. 

Any contrary conclusion would lead only to absurdity.” Id. The Court 

reasoned that the legislature intended to protect children from older 

predators, but did not intend to criminalize mutually agreed-upon sexual 

activity between juveniles in the same peer group. Id. at 897. Therefore, 

the Court suggested that while sexual activity between peers is not necessarily 
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a crime, the same behavior becomes criminal when the ages of the 

participants are “significantly disparate and/or the acts were not mutually 

agreed upon.” Id. 

The B.A.M. Court continued: 

If, by virtue of age alone a child under 13 is incapable of 

consenting to sexual activity, he or she must be presumed, absent 

clear evidence to the contrary, to be equally incapable, in any 

sense implicating criminal liability, of initiating such conduct. . . . 

It is therefore absurd to penalize one youngster while the other 

faces no sanction for precisely the same behavior. Either both 

boys must be punished/counseled/treated, or neither can be; as 

the trial court definitively found, both boys were willingly 

participants and J. was not victimized by the experience. The law 

was not intended to render criminal per se the experimentation 

carried on by young children, even where the acts may evoke 

disapprobation or censure.

Id. at 898 (footnote omitted).

This Court has consistently limited B.A.M. to the facts of that case. In 

C.R., a twelve-year-old juvenile relied on B.A.M. to claim that he could not 

be adjudicated delinquent for sexual acts because he was under thirteen years 

of age. See C.R., 113 A.3d at 333-34. The C.R. Court rejected the juvenile’s 

argument, noting that the B.A.M. Court did “not hold that a 13-year-old 

cannot be held criminally liable for initiating sexual activity; rather, it held 

that one child could not be held criminally liable for the acts of two 11-yearolds who consensually engaged in the conduct.” Id. at 334 (emphasis in 

original). The C.R. Court further emphasized that the record in B.A.M.
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established that the acts at issue were consensual.4 Additionally, this Court 

reiterated the limited holding of B.A.M., explaining that “[w]ere we to have 

worded our holding in B.A.M. more precisely, we would have strictly limited 

the holding to its facts wherein mutually agreed upon sexual activity between 

peers under the age of 13 is not a crime.” Id. at 335 (citation omitted). 

For the reasons set forth in C.R., we find Appellant’s reliance on B.A.M.

to be unavailing. First, the instant case does not involve peers. Appellant 

was eleven years old when he committed the subject acts against a six-yearold. Second, the record supports the juvenile court’s finding that Appellant 

committed the acts without the victim’s consent and there is no basis in the 

record to conclude that the sexual activities constituted mutually agreed-upon 

conduct. Lastly, were we to extend B.A.M. in the manner that Appellant 

suggests, it would effectively absolve individuals under the age of thirteen 

from criminal liability in any sex case. See C.R., 113 A.3d at 335.

Finally, Appellant contends that the juvenile court’s finding of 

delinquency was against the weight of the evidence. Appellant argues that the 

victim lacked credibility due to the victim’s age, the amount of testimony that 

was rejected, the lack of corroborating evidence, and the “[victim’s] 

undisputed reputation for ‘stretching the truth.’” Appellant’s Brief at 11. 

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4 Appellant argues that C.R. is distinguishable because that case involved a

victim who was deemed incapable of consenting because of a mental 

disability. See C.R., 113 A.3d at 334 (citing 18 Pa.C.S. § 3123(a)(5)). 

However, any distinctions grounded in the victim’s mental capacity or age is 

immaterial given Appellant’s argument that he was incapable of initiating 

sexual activity based on his age. 
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Appellant notes that two of the original delinquent acts (sexual assault and 

aggravated indecent assault) were dismissed at the conclusion of the 

adjudicatory hearing and that the juvenile court found portions of the victim’s 

testimony regarding the first incident inside the tent were not credible. Id. at 

21. Appellant also argues that there were inadequate opportunities for 

Appellant to have committed the subject acts and the allegations against 

Appellant arose in the context of an ongoing custody dispute. Id. at 22.

In assessing a weight of the evidence claim, our standard of review is 

well-settled.

The weight of the evidence is exclusively for the finder of 

fact who is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses. An 

appellate court cannot substitute its judgment for that of the 

finder of fact. Thus, we may only reverse the lower court’s 

verdict if it is so contrary to the evidence as to shock one’s 

sense of justice. Moreover, where the trial court has ruled 

on the weight claim below, an appellate court’s role is not 

to consider the underlying question of whether the verdict 

is against the weight of the evidence. Rather, appellate 

review is limited to whether the trial court palpably abused 

its discretion in ruling on the weight claim.

This Court applies the same standard for reviewing weight claims 

in juvenile cases. In considering weight of the evidence claims, it 

is not the function of an appellate court to substitute its judgment 

based on a cold record for that of the judge who conducted the 

juvenile adjudication hearing. Credibility is for the trier of fact, 

who is free to believe all, part or none of the evidence presented. 

A challenge to the weight of the evidence concedes that sufficient 

evidence exists to sustain the verdict, but questions which 

evidence is to be believed. An appellate court reviews the trial 

court’s exercise of discretion, not the underlying question of 

whether the verdict is against the weight of the evidence. 

In re R.N., 951 A.2d 363, 370-71 (Pa. Super. 2008) (citations omitted). 
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The juvenile court, when considering Appellant’s weight of the evidence 

claim, acknowledged that it found portions of the victim’s testimony to be 

incredible with respect to genital-to-genital contact during the first incident 

and as to the third incident in its entirety. The court opined that 

the rest of the victim’s testimony remains credible so far as her 

claim that [Appellant] touched her genitalia with his tongue during 

the incident in May of 2015 and that [Appellant] kissed her on 

intimate areas of her body on multiple other occasions. 

Throughout her examination and cross-examination, the victim 

remained adamant that these acts had occurred. Further, the 

victim’s consistent reporting of the sexual contact to her parents 

and the testimony from [the victim’s therapist] regarding the 

victim’s symptoms of Post-Traumatic Stress Disorder, which she 

deemed to be consistent with sexual abuse, increased the 

reliability of the victim’s testimony. . . . 

Juvenile Ct. Order, 6/13/17, at 15.

Upon review of the record, we discern no abuse of discretion in the 

juvenile court’s rejection of Appellant’s weight claim. See R.N., 951 A.2d at 

370-71. Here, the court found the victim’s testimony credible with respect to 

the acts constituting indecent assault (complainant less than 13 years of age). 

Thus, the juvenile court did not abuse its discretion by concluding that the 

adjudication was not so contrary to the evidence as to shock the court’s 

conscience. See id. Accordingly, this claim merits no relief.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2018