J-S69007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: N.G., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

APPEAL OF: N.G. : No. 287 EDA 2015

Appeal from the Dispositional Order January 9, 2015

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-JV-0002891-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 09, 2016

Appellant, N.G., appeals from the dispositional order entered in the 

Philadelphia County Court of Common Pleas, following her adjudication of 

delinquency for aggravated assault.1 We affirm the dispositional order. 

The relevant facts and procedural history of this case are as follows. 

On or about October 13, 2014, A.C. [“Victim”] encountered Appellant and 

Appellant’s older sister, C.G., at Conrad Square in Philadelphia. Appellant 

and C.G. confronted Victim because Victim’s brother had made fun of 

Appellant. C.G. yelled at Victim and tried to get Victim to fight. Instead of 

fighting, Victim went to get her mother to help resolve the situation. When 

Victim’s mother arrived, C.G. and Victim’s mother engaged in a verbal 

altercation. After the verbal altercation between C.G. and Victim’s mother 

ended, Victim believed the situation had been resolved. Appellant, however, 

then yelled at Victim and challenged Victim to a fight. Victim tried to walk 

 

1 18 Pa.C.S.A. § 2702(a)(1). 
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away, but Victim and Appellant began fighting after Appellant grabbed 

Victim’s hair. During the fight, Victim and Appellant ended up on the ground 

with Appellant on top of Victim. Appellant subsequently smashed Victim’s 

head into the pavement repeatedly, which caused Victim to lose 

consciousness. Several adults pulled Appellant off Victim, and an ambulance 

transported Victim to the hospital. 

On November 4, 2014, the Commonwealth filed a petition to 

adjudicate Appellant delinquent for the offenses of recklessly endangering 

another person (“REAP”), simple assault, and aggravated assault. In the 

delinquency petition, the Commonwealth graded the aggravated assault as a 

second-degree felony (“aggravated assault—F2”); however, the description 

of the offense used the language for aggravated assault graded as a firstdegree felony (“aggravated assault—F1”). On January 9, 2015, the court 

held an adjudication hearing. Following the hearing, the court adjudicated 

Appellant delinquent of aggravated assault—F1 and sentenced Appellant to 

probation until further court order. On January 20, 2015, Appellant timely 

filed a notice of appeal. On March 11, 2015, the court ordered Appellant to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), and Appellant timely complied on April 6, 2015. 

Appellant raises the following issues for our review: 

WAS NOT THE EVIDENCE INSUFFICIENT TO ADJUDICATE 

[APPELLANT] OF AGGRAVATED ASSAULT AS A FELONY OF 

THE SECOND DEGREE, AS CHARGED AS THERE WAS NO 
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WEAPON INVOLVED AND [VICTIM] WAS NOT A SPECIAL 

VICTIM UNDER [18 PA.C.S.A. § 2702(C)]? 

WAS NOT THE EVIDENCE INSUFFICIENT TO ADJUDICATE 

[APPELLANT] OF ANY OFFENSE WHERE THE COMPLAINING 

DOCUMENT CHARGED AN ASSAULT ON OCTOBER 13, 2014 

WHILE THE WITNESSES TESTIFIED VARIOUSLY THAT 

WHAT HAPPENED OCCURRED ON OCTOBER 14 OR 

OCTOBER 15, 2014? 

(Appellant’s Brief at 2). 

For purposes of disposition, we combine Appellant’s issues. Appellant 

argues the Commonwealth failed to prove the necessary elements to 

adjudicate Appellant delinquent of aggravated assault—F2 under 18 

Pa.C.S.A. §§ 2702(a)(3), (a)(4), (a)(5), (a)(6), (a)(7), or (a)(8). Appellant 

avers Victim does not qualify as a Section 2702(c) special victim as 

necessary to adjudicate Appellant delinquent of aggravated assault—F2 

under Sections 2702(a)(3), (a)(6), or (a)(7). Appellant also claims the 

Commonwealth failed to prove Appellant used a deadly weapon during the 

assault as necessary to adjudicate Appellant delinquent of aggravated 

assault—F2 under Section 2702(a)(4). Appellant further asserts that Victim 

does not qualify as a teacher, school board member or other employee as 

necessary to adjudicate Appellant delinquent of aggravated assault—F2 

under Section 2702(a)(5). Appellant finally contends Victim is not under six 

years of age as necessary to adjudicate Appellant delinquent of aggravated 

assault—F2 under Section 2702(a)(8). Appellant also argues the 

Commonwealth failed to prove the facts asserted in the delinquency petition 
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because the date of the incident differed between the delinquency petition 

and the testimony presented at the adjudication hearing. For these reasons, 

Appellant concludes the evidence was insufficient to support her adjudication 

of delinquency for aggravated assault—F2, and this Court should vacate 

Appellant’s adjudication of delinquency. We disagree. 

A challenge to the sufficiency of the evidence implicates the following 

legal principles: 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [finder] 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. 

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) 

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

The Crimes Code defines aggravated assault as follows: 
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§ 2702. Aggravated assault

(a) Offense defined.—A person is guilty of aggravated 

assault if [s]he: 

(1) attempts to cause serious bodily injury to 

another, or causes such injury intentionally, 

knowingly or recklessly under circumstance 

manifesting extreme indifference to the value of 

human life; 

(2) attempts to cause or intentionally, knowingly, or 

recklessly causes serious bodily injury to any of the 

officers, agents, employees or other persons 

enumerated in subsection (c) or to an employee of 

an agency, company or other entity engaged in 

public transportation, while in the performance of 

duty; 

(3) attempts to cause or intentionally or knowingly 

causes bodily injury to any of the officers, agents, 

employees or other persons enumerated in 

subsection (c), in the performance of duty; 

(4) attempts to cause or intentionally or knowingly 

causes bodily injury to another with a deadly 

weapon; 

(5) attempts to cause or intentionally or knowingly 

causes bodily injury to a teaching staff member, 

school board member or other employee, including a 

student employee, of any elementary or secondary 

publicly-funded educational institution, any 

elementary or secondary private school licensed by 

the Department of Education or any elementary or 

secondary parochial school while acting in the scope 

of his or her employment or because of his or her 

employment relationship to the school; 

(6) attempts by physical menace to put any of the 

officers, agents, employees or other persons 

enumerated in subsection (c), while in the 
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performance of duty, in fear of imminent serious 

bodily injury; 

(7) uses tear or noxious gas as defined in section 

2708(b) (relating to use of tear or noxious gas in 

labor disputes) or uses an electric or electronic 

incapacitation device against any officer, employee 

or other person enumerated in subsection (c) while 

acting in the scope of his employment; 

(8) attempts to cause or intentionally, knowingly or 

recklessly causes bodily injury to a child less than six 

years of age, by a person 18 years of age or older; 

or 

(9) attempts to cause or intentionally, knowingly or 

recklessly causes serious bodily injury to a child less 

than 13 years of age, by a person 18 years of age or 

older. 

(b) Grading.—Aggravated assault under subsection 

(a)(1), (2) and (9) is a felony of the first degree. 

Aggravated assault under subsection (a)(3), (4), (5), (6), 

(7) and (8) is a felony of the second degree. 

18 Pa.C.S.A. § 2702(a)-(b). Serious bodily injury is defined as “[b]odily 

injury which creates a substantial risk of death or which causes serious, 

permanent disfigurement, or protracted loss or impairment of the function of 

any bodily member or organ.” 18 Pa.C.S.A. § 2301. 

“Indictments must be read in a common sense manner and are not to 

be construed in an overly technical sense.” Commonwealth v. Ohle, 503 

Pa. 566, 588, 470 A.2d 61, 73 (1983). The purpose of an indictment is to 

provide the accused with sufficient notice to prepare a defense, and to 

insure that he will not be tried twice for the same act. Commonwealth v. 

Conaway, 105 A.3d 755, 764 (Pa.Super. 2014), appeal denied, __ Pa. __, 
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118 A.3d 1107 (2015). “[A] variance is not fatal unless it could mislead the 

defendant at trial, involves an element of surprise prejudicial to the 

defendant’s efforts to prepare his defense, precludes the defendant from 

anticipating the prosecution’s proof or impairs a substantial right.” Ohle, 

supra at 589, 470 A.2d at 73. Importantly, the Commonwealth does not 

need to prove that the crime occurred on the date alleged in the indictment, 

except where the date is an essential issue in the case. Commonwealth v. 

Young, 561 Pa. 34, 64, 748 A.2d 166, 182 (1999). 

Instantly, the description of the offense in Appellant’s delinquency 

petition stated, “the offender did intentionally cause/attempt to cause 

serious bodily injury to the complainant, A.C....” (See Delinquency Petition, 

filed 11/4/14, at 1). This language mirrors the language for aggravated 

assault—F1 under Section 2702(a)(1), and put Appellant on notice that the 

Commonwealth planned to adjudicate her of aggravated assault—F1, despite 

the aggravated assault—F2 designation in the delinquency petition. See 18 

Pa.C.S.A. § 2702(a)(1). Additionally, the trial court’s opinion cited the 

language of aggravated assault—F1 when it explained its decision to 

adjudicate Appellant delinquent of aggravated assault—F1. Under these 

circumstances, Appellant knew that the Commonwealth sought an 

adjudication of delinquency for aggravated assault—F1 and that the trial 

court did, in fact, adjudicate Appellant delinquent of aggravated assault—F1. 

Thus, the record belies Appellant’s assertion that her adjudication of 
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delinquency was for aggravated assault—F2. 

Further, the minor discrepancy over the date of the incident did not 

prejudice Appellant’s preparation of her defense. The delinquency petition 

stated the offense occurred on October 13, 2014, while the witnesses at the 

adjudication hearing testified the offense occurred on October 14 or 15, 

2014. Nevertheless, Appellant presented the eyewitness testimony of her 

older sister, C.G., who was present at the fight between Appellant and 

Victim. The presentation of this testimony demonstrated Appellant’s 

awareness of the allegations against her and the incident from which those 

allegations stemmed. Appellant’s actions also established that Appellant was 

not surprised or misled at the adjudication hearing by the date variance. 

See Ohle, supra. Additionally, Appellant does not allege that the date of 

the offense is an essential issue in her case. See Young, supra. Thus, the 

date discrepancy is not dispositive of Appellant’s sufficiency of the evidence 

claim. 

In any event, the testimony at the adjudication hearing established 

that Appellant challenged Victim to a fight and threatened to find Victim 

alone if Victim refused to fight. Additionally, Victim and Victim’s mother 

both testified that Appellant repeatedly smashed Victim’s head into the 

ground during the fight. Both parties also testified that Appellant’s actions 

knocked Victim unconscious and Victim required hospitalization as a result. 

Victim’s mother further stated that it took three adults to pull Appellant off 
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Victim, even though Victim was unconscious. The court determined these 

circumstances established Appellant’s intent to inflict serious bodily injury to 

Victim. Thus, sufficient evidence existed to support Appellant’s adjudication 

of delinquency for aggravated assault—F1, and Appellant’s issues on appeal 

merit no relief. See 18 Pa.C.S.A. § 2702(a)(1). Accordingly, we affirm. 

Dispositional order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2016