J-S23030-24 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

IN THE INTEREST OF: A.M., A 

MINOR 

APPEAL OF: A.M., MINOR 

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2695 EDA 2023 

Appeal from the Order Entered August 10, 2023 

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-JV-0000022-2023 

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED SEPTEMBER 27, 2024

 Appellant, A.M., appeals from the dispositional order entered in the 

Lehigh County Court of Common Pleas, finding that Appellant committed the 

offenses of indecent assault and involuntary deviate sexual intercourse 

(“IDSI”),1 and adjudicating him delinquent. We affirm in part, reverse in part, 

and remand. 

 The juvenile court set forth the relevant facts of this case as follows: 

[O]n May 16, 2022, the juvenile victim, J.T.O. [(“Victim”)], 

... was living with his mother and grandmother in Easton, 

Pennsylvania. [Victim] attended the Arts Academy Charter 

Middle School in Allentown, Pennsylvania and was in the 

seventh grade. On that date, [Victim] was at lunch in the 

middle school cafeteria located on the ground floor of the 

building. [Victim] needed to use the restroom and therefore 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 18 Pa.C.S.A. §§ 3126(a)(1) and 3123(a)(1), respectively. 
J-S23030-24 

- 2 - 

he signed out by writing his name on a large white board 

per school protocol. The closest bathroom was located on 

the first floor of the school. [Victim] entered the restroom 

and he was the sole occupant until [Appellant]1 entered 

behind him. [Victim], who was wearing sweatpants at the 

time, approached the urinal. When he pulled his pants down 

in the front to facilitate urinating at the urinal, [Appellant] 

came up behind him and pulled his sweatpants all the way 

down. [Appellant] then dragged [Victim] into a bathroom 

stall and began to “dry hump” him from behind. [Victim] 

could feel [Appellant’s] underwear against his bare buttocks 

when [Appellant] was thrusting his pelvic area into him. 

[Victim] ordered [Appellant] to stop it, and although 

[Appellant] did not immediately comply, [Appellant] 

ultimately stopped and left the bathroom. 

1

 [Appellant] and [Victim] were not friends at school, 

but were mere acquaintances. They were familiar 

with each other through their friendship groups. 

[Victim], shocked and shaken up, but stilling having to use 

the restroom, went back to the urinal to relieve himself. As 

he began to urinate, [Appellant] reentered the bathroom, 

approached [Victim] from behind, and pulled his pants down 

for a second time. [Appellant] again “humped” [Victim]. 

This time, however, [Victim] indicated that he felt 

[Appellant’s] warm skin directly on the skin of his own 

buttocks. In other words, the clothes did not provide a 

barrier as with the earlier incident. [Victim] believed that 

[Appellant] was trying to penetrate his anus, as he felt 

[Appellant’s] penis at the “beginning of the crack” in his 

buttocks.2 ... Faced with this situation, [Victim] was 

nervous, “freaking out,” and in shock, and ordered 

[Appellant] to stop. When [Appellant] did not cease his 

actions, [Victim] stepped on [Appellant’s] foot and pushed 

him away. [Appellant] pulled his pants up, they looked at 

each other, and [Appellant] bolted out of the restroom. 

[Victim] was in a state of shock and confusion. 

2

 [Victim] further testified that he felt [Appellant’s] 

testicles on his buttocks. 

(Juvenile Court Opinion, filed 9/21/23, at 3-5) (record citations omitted). 
J-S23030-24 

- 3 - 

Later that day, Victim reported the incident to the school’s guidance counselor. 

 On January 23, 2023, the Commonwealth filed a petition alleging 

delinquency based upon the offenses of IDSI and indecent assault. The court 

conducted an adjudicatory hearing on May 11, 2023. At the conclusion of the 

hearing, the court found that Appellant had committed IDSI and indecent 

assault. (See N.T. Adjudicatory Hearing, 5/11/23, at 121). The court also 

deferred any disposition pending an intake interview and psychological 

evaluation. (Id. at 126). On August 10, 2023, the court conducted a 

dispositional hearing. After receiving testimony from a probation officer and 

Appellant, the court adjudicated Appellant delinquent and placed him on 

probation. 

 On Monday, August 21, 2023, Appellant filed a post-disposition motion 

arguing that the evidence was insufficient to support an adjudication based 

upon the offense of IDSI. Further, Appellant argued that the adjudication was 

against the weight of the evidence. By opinion and order entered September 

21, 2023, the court denied Appellant’s motion. Appellant timely filed a notice 

of appeal and voluntary Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal on October 17, 2023. 

 Appellant raises one issue for this Court’s review: 

Whether [the juvenile] court erred when it failed to grant 

Appellant’s motion for reconsideration and find that the 

evidence, even when examined in the light most favorable 

to the Commonwealth, is insufficient as a matter of law to 

sustain the burden of proof as to [IDSI]. 
J-S23030-24 

- 4 - 

(Appellant’s Brief at 3). 

 On appeal, Appellant emphasizes Victim’s testimony that he was “pretty 

sure” that Appellant’s penis touched “the beginning of his butt crack.” (Id. at 

7) (quoting N.T. Adjudicatory Hearing at 48). Appellant maintains that 

“‘pretty sure’ is not beyond a reasonable doubt.” (Id.) Likewise, Appellant 

notes Victim’s testimony that Appellant’s penis touched “the outside” of “the 

crack.” (Id.) (quoting N.T. Adjudicatory Hearing at 50). Appellant insists that 

“the surface of the buttock and one’s anus, by their very definitions, are 

extremely distinguishable,” and the act of IDSI requires penetration of the 

anus rather than contact with a buttock.2 (Id. at 8). Appellant concludes that 

the Commonwealth presented insufficient evidence to prove that he 

committed IDSI, and this Court must grant relief. We agree. 

 This Court has explained: 

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 

____________________________________________ 

2

 In response, the Commonwealth cites Interest of C.S.S., No. 1799 MDA 

2017, unpublished memorandum at *3 (Pa.Super. filed January 25, 2019), for 

the proposition that an individual commits IDSI if his penis penetrates the 

natal cleft, “the bifurcation that appears between the two cheeks of the 

buttocks beginning at the bottom of the spine and ending below the anus[.]” 

(Commonwealth’s Brief at 10). Under Pa.R.A.P. 126(b), however, we may 

only rely on unpublished decisions from this Court filed after May 1, 2019 for 

persuasive value. 
J-S23030-24 

- 5 - 

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. 

The facts and circumstances established by the 

Commonwealth need not be absolutely incompatible with a 

defendant’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 Interest of J.G., 145 A.3d 1179, 1188 (Pa.Super. 2016) (internal citations 

omitted). 

The Crimes Code defines IDSI, in relevant part, as follows: 

§ 3123. Involuntary deviate sexual intercourse 

(a) Offense defined.—A person commits a felony 

of the first degree when the person engages in deviate 

sexual intercourse with a complainant: 

(1) by forcible compulsion[.] 

18 Pa.C.S.A. § 3123(a)(1). 

The Crimes Code defines “deviate sexual intercourse” as: “Sexual 

intercourse per os or per anus between human beings....” 18 Pa.C.S.A. § 

3101. 

The plain meaning of “intercourse,” as used in § 3101, is 

physical sexual contact between individuals that involves 

the genitalia of at least one person[.] “Per” has been 

defined as by the means or agency of: by way of: 

THROUGH. Consequently, the ordinary meaning of “per os 

or per anus” is through or by means of the mouth or 
J-S23030-24 

- 6 - 

posterior opening of the alimentary canal. Our courts have 

viewed the phrase “intercourse per os or per anus” as 

describing oral and anal sex. 

Commonwealth v. Kelley, 569 Pa. 179, 186, 801 A.2d 551, 555 (2002) 

(internal citations and some quotation marks omitted). “[I]n order to sustain 

a conviction for [IDSI], the Commonwealth must establish the perpetrator 

engaged in acts of oral or anal intercourse, which involved penetration 

however slight.” Commonwealth v. L.N., 787 A.2d 1064, 1070 (Pa.Super. 

2001), appeal denied, 569 Pa. 680, 800 A.2d 931 (2002). 

 Instantly, Victim provided extensive testimony at the adjudication 

hearing. On direct examination, Victim explained that on the date of the 

incident, he left the lunchroom to go to the bathroom. Appellant followed him 

into the bathroom. Victim described what happened next as follows: 

And when I was about to start peeing, he kind of like pulled 

down my pants, and dragged me into like the bathroom 

stall. And then he starts dry humping me. I could feel it 

like lint. And after that I’m like saying, stop, [Appellant], 

stop. 

* * * 

And so, I say stop, and he stops. He like goes out the 

bathroom for like a little. And I see he’s gone, so I go back 

to the urinal to go pee, a little shocked. 

And then—then I go back to the urinal, start peeing, and he 

pulls down my pants again, but this time instead of dry 

humping, I don’t feel any lint, and it’s warm. And I do not 

feel any penetration, but I did feel that. And so, I got a 

little nervous. And I’m still saying stop it. And I kind of like 

pushed him away. 

(N.T. Adjudicatory Hearing at 33-34) (emphasis added). 
J-S23030-24 

- 7 - 

During the initial phase of the incident, Victim “just felt [Appellant’s] 

underwear at that first point.” (Id. at 37). Victim also testified that when he 

used the word “humping,” he meant “thrusting. Like something you would do 

in intercourse.” (Id. at 37-38). After the initial phase of the incident, 

Appellant stopped and “just like left the bathroom for the moment.” (Id. at 

39). When Appellant reentered the bathroom and pulled down Victim’s pants, 

Victim felt “skin on skin” contact. (Id.) Victim elaborated, “He was trying to 

put his private part in my butt.” (Id. at 39-40). Victim and the prosecutor 

later engaged in the following exchange: 

[PROSECUTOR:] Okay. And did his penis touch any part 

of your body? 

[VICTIM:] Pretty sure—yeah, my butt. 

[PROSECUTOR:] Your butt. And can you tell—I know 

this is a weird question, so I’m sorry, but can you tell us 

exactly where on your butt his penis touched you? 

[VICTIM:] Like the beginning of the crack. 

[PROSECUTOR:] Say that again? 

[VICTIM:] Like on the surface. 

[PROSECUTOR:] On the surface? And you—I think you 

said something else. Can you say again what you said the 

first time again? 

[VICTIM:] Like on the crack. The surface of the 

crack. 

(Id. at 48-49). The prosecutor also asked, “How come it didn’t penetrate?” 

(Id. at 49). Victim responded, “I’m not sure.” (Id.) 
J-S23030-24 

- 8 - 

 On cross-examination, defense counsel asked Victim about when he 

learned to use “big words,” like intercourse and penetration. (Id. at 61). 

Victim said he learned the words in fifth grade during a “really random” lesson. 

(Id.) Thereafter, Victim reiterated the points he made on direct examination: 

[COUNSEL:] How did you know it was his private area if 

you couldn’t see him? 

[VICTIM:] I felt his testicles. 

[COUNSEL:] Okay. And you said that his penis just 

touched your butt on the surface, right? 

[VICTIM:] Yes. 

[COUNSEL:] Okay. And you said he—I think you 

actually said it a couple times, but you said you didn’t 

feel any penetration, right? 

[VICTIM:] Yes. 

[COUNSEL:] Okay. And you said his penis just touched 

the outside of the crack? 

[VICTIM:] Yes. 

(Id. at 71-72) (emphasis added). 

 Despite Victim’s repeated statements that Appellant’s penis merely 

touched his buttock, the juvenile court found sufficient evidence of IDSI: 

Viewing all the evidence and all reasonable inferences 

arising therefrom in the light most favorable to the 

Commonwealth, it is clear that the evidence was sufficient 

to enable a finder of fact to conclude that all the elements 

of the offense were established beyond a reasonable doubt. 

Indeed, at the conclusion of the hearing, based on the 

evidence, this [c]ourt had no doubt that [Appellant] 

penetrated [Victim’s] anus, albeit slight, with his penis by 

physical compulsion. 
J-S23030-24 

- 9 - 

(Juvenile Court Opinion at 7). 

 Even viewing all evidence in the light most favorable to the 

Commonwealth, the testimony did not establish that Appellant’s penis 

penetrated Victim’s anus. See Interest of J.G., supra. The adjudicatory 

hearing transcript reveals that Victim understood the meaning of the term of 

“penetration,” and he repeatedly denied that Appellant’s penis penetrated 

him. While Victim admitted that Appellant’s penis touched his “butt” or “the 

beginning of the crack,” such actions fall short of anal sex by forcible 

compulsion, which is the prohibited conduct under the IDSI statute. See 

Kelley, supra; 18 Pa.C.S.A. §§ 3101, 3123(a)(1). 

 For these reasons, we reverse Appellant’s adjudication of delinquency 

based upon the offense of IDSI. We affirm the adjudication in all other 

respects. As this may impact the juvenile court’s disposition, we vacate the 

August 10, 2023 dispositional order and remand for entry of a new 

dispositional order. See In re R.B.G., 932 A.2d 166 (Pa.Super. 2007) 

(vacating dispositional order and remanding for entry of new order where this 

Court determined that evidence was insufficient to support adjudication of 

delinquency for some acts, but evidence was sufficient to support adjudication 

of delinquency for other acts). 

 Adjudication affirmed in part and reversed in part. Order vacated. Case 

remanded. Jurisdiction relinquished. 
J-S23030-24 

- 10 - 

Date: 9/27/2024