J-S48027-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.S., A JUVENILE

APPEAL OF: J.S., A JUVENILE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3544 EDA 2017

Appeal from the Dispositional Order June 5, 2017

In the Court of Common Pleas of Northampton County Criminal Division 

at No(s): CP-48-JV-0000055-2017

BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.: FILED AUGUST 30, 2018

J.S. (Appellant) appeals from the dispositional order of the Juvenile 

Court entered after it adjudicated him delinquent of indecent assault for

having “indecent contact with the complainant . . . without the complainant’s 

consent.”1 We affirm.

The Juvenile Court provided the following summary of the facts adduced 

at the hearing:

[O]n January 25, 2017, [Appellant] and three juvenile females 

(M.V., [the complainant], and I.C.) were together in the basement 

of juvenile, M.V.’s, home. N.T., 4/10/17 at 8-9, 11. The juvenile 

females began drinking vodka. Id. at 12, 64-65, 184-85. 

[Appellant] was not drinking. Id. at 65. [Appellant], M.V., and 

[the complainant] kissed each other. Id. at 14, 31, 69-70, 86, 

185-86, 188. Thereafter, [the complainant] laid down. Id. at 71. 

M.V. testified that [the complainant] was not moving, speaking, 

and her eyes were closed. Id. M.V. observed [Appellant] pull [the 

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1 18 Pa.C.S.A. § 3126(a)(1).
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complainant’s] pants down and have sexual intercourse with her. 

Id. at 71-72. M.V. filmed the interaction and the video was played 

for the Court. Id. at 73. M.V. also testified that she heard [the 

complainant] say “stop, [Appellant], that hurts.” Id. at 81. M.V. 

testified that after the sexual contact between [Appellant] and 

[the complainant], [the complainant] was not awake or conscious. 

Id. at 104. Immediately following her observation, M.V. 

characterized [Appellant’s] action as rape. Id. at 133, 143. The 

following day, [the complainant] did not have any recollection of 

having intercourse with [Appellant]. Id. at 17-19, 56. [The 

complainant] learned about the video of the incident, and she and 

her mother reported it to the police. Id. at 20-22, 167.

Juvenile Court Opinion, 2/6/18, at 2-3.

After being contacted by the complainant and her mother, the police 

filed a delinquency petition. Thereafter:

On April 10, 2017, after a full contested hearing, [the 

Juvenile Court] adjudicated [Appellant] delinquent on the charge 

of Indecent Assault as a misdemeanor of the second degree. On 

June 5, 2017, a dispositional hearing was held . . . at which time 

[Appellant] was placed on probation and also placed with 

Safeguards Specialized Foster Care. On June 15, 2017, 

Appellant’s counsel filed a Post-Dispositional Motion in this matter. 

However, the Motion was never forwarded to [the Juvenile Court], 

and the Court was unaware of the filing until September 18, 2017. 

Thereafter, on September 19, 2017, [the Juvenile Court] filed an 

Order denying the Motion by operation of law, pursuant to 

Pa.R.J.C.P. 620(D)(1). The instant appeal followed.

Juvenile Court Opinion, 2/6/18, at 1. The Juvenile Court and Appellant have 

complied with Pa.R.A.P. 1925. On appeal, Appellant presents the following 

two issues:

1. Whether the evidence was sufficient to support a 

finding on the offense of Indecent Assault under § 3126(a)(1) in 

that the evidence did not establish lack of consent?

2. Whether the lower court erred in considering the 

offense of Indecent Assault under § 3126(a)(1) as such offense 
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was not included among the original charges in violation of due 

process?

Appellant’s Brief at 5.

Appellant’s issues are related. We begin our analysis with Appellant’s 

second issue, in which he claims that he was improperly adjudicated of 

indecent assault under § 3126(a)(1) because “such offense was not included 

among the original charges in violation of due process,” and “not included in 

the written allegation or in the later amended Petition.” Appellant’s Brief at 

10. Pertinently, the statute reads:

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:

(1) the person does so without the complainant’s consent ... 

18 Pa.C.S.A. § 3126(a) (emphasis added).

Appellant claims he was prepared to defend only against the charge of 

§ 3126(a)(4), where “the complainant is unconscious or the person knows 

that the complainant is unaware that the indecent contact is occurring.” 

(Emphasis added). Appellant asserts that he “prepared his defense based 

upon the charges set forth in the Petition,” and “successfully defended on the 

charges for which he was put on notice,” i.e., the “alleged unconscious state 

of the complainant.” Appellant’s Brief at 10, 16-17 (emphasis added). He 

emphasizes that the complainant indicated that she did not remember what 

happened, and the Commonwealth did not present any evidence that the 
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complainant “affirmatively withheld consent.” Id. at 16-17. In making this 

argument, Appellant references “an element of surprise prejudicial to efforts 

to prepare a defense,” and contends that his due process rights were violated. 

Id. at 15.

Preliminarily, we note that our review of the record does not support 

Appellant’s contention that he “successfully defended against the charges for 

which he was put on notice.” The Juvenile Court, as the fact-finder, expressly 

determined that the complainant “was not fully conscious/not in a condition 

to consent to the sexual contact.” Juvenile Court Opinion, 2/6/18, at 3.

Also, while Appellant was originally charged with, inter alia, indecent 

assault under Section 3126(a)(4), which relates to a victim who is unconscious 

or unaware of indecent contact occurring, and the Juvenile Court adjudicated 

Appellant delinquent of Section 3126(a)(1), relating to indecent contact 

without the victim’s consent, as noted by the Commonwealth, “[t]here was no 

variance between the information contained in the written allegation and the 

evidence presented at the contested hearing.” Id. at 8. The Commonwealth 

counters that Appellant was “fairly put on notice of the evidence to be 

presented against him.” Id. at 3. We agree.

This Court recently examined evidence of indecent assault where the 

victim was intoxicated and the appellant was charged with, inter alia, sexual 

assault under both subsections (1) (lack of consent) and (4) (unconscious). 

Commonwealth v. Stahl, 175 A.3d 301 (Pa. Super. 2017). We stated:
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Turning to the evidence in this case, we find that it was 

clearly sufficient to support a guilty verdict. Appellant conceded 

that he engaged in sexual intercourse with the victim, and that 

she was intoxicated at the time. Thus, the Commonwealth had the 

burden of proving that the victim was “unconscious or ... unaware 

that the sexual intercourse is occurring[.]” 18 Pa.C.S. § 

3121(a)(3); see also 18 Pa.C.S. § 3125(a)(4) (requiring a 

showing that the victim was “unconscious or ... unaware that the 

penetration is occurring”). Such a showing would also suffice 

to demonstrate lack of consent for purposes of Section 

3126(a)(1).

Stahl, 175 A.3d at 305 (emphasis added).

Consistent with the evidence of record and Stahl, the Juvenile Court

adjudicated Appellant of indecent assault under 3126(a)(1), stating that it had 

“viewed the video of the incident, and determined that [the complainant] was 

not fully conscious/not in a condition to consent to the sexual contact.” 

Juvenile Court Opinion, 2/6/18, at 3. Here, as with Stahl, the same evidence

of sexual contact and the victim’s intoxication sufficed “to demonstrate a lack 

of consent for purposes of Section 3126(a)(1),” and belies Appellant’s 

argument that he was deprived of due process because he “lacked adequate 

notice” from which to prepare his defense. Finally, we agree with the 

Commonwealth that Section 3126(a)(1), as a second-degree misdemeanor, 

is a lesser included offense of Section 3126(a)(4), which is a first-degree 

misdemeanor. See 18 Pa.C.S.A. § 3126(b)(1),(2); see also Commonwealth 

Brief at 14-15.

Likewise, we are not persuaded by Appellant’s second issue assailing 

the sufficiency of the evidence. Appellant claims that the evidence “did not 
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establish a lack of consent.” Appellant’s Brief at 10. In evaluating a challenge 

to the sufficiency of the evidence supporting an adjudication of delinquency, 

our standard of review 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.

In re A.V., 48 A.3d 1251, 1252–53 (Pa. Super. 2012). It is well-settled that 

the trier of fact – in this case the Juvenile Court – assesses the credibility of 

the witnesses and weighs the evidence, and is free to believe all, part or none 

of the evidence. Commonwealth v. Britton, 134 A.3d 83, 86 (Pa. Super. 

2016) (citation omitted).

Instantly, Appellant asserts that “[t]his was an episode of drunken 

consensual behavior by among immature teenagers [and only] became a 

sexual assault when an ashamed complainant and vengeful girlfriend turned 

it into a sexual assault.” Appellant’s Brief at 11. The Juvenile Court concluded 

otherwise, and that conclusion is supported by the record.

The juveniles involved in the incident testified at the hearing. The 

complainant testified that she had little memory of the incident, stating, “I 
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just remember saying no, [Appellant], stop it. That’s all I remember.” N.T., 

4/10/17, at 14. It was not until the next day that the complainant learned 

about the incident and that M.V. had videotaped it. The complainant opined 

that Appellant “knew that I couldn’t take care of myself. . . . I thought he 

would take care of me and make sure I was alright, but I guess that wasn’t 

on his mind at the time.” Id. At 56.

M.V. testified that the four juveniles were drinking vodka in her 

basement when one of females, I.C., passed out. She testified that the three 

others kissed, and that eventually, when the complainant laid down, Appellant 

“pulled [the complainant’s] pants down, and he like raped her from there.” 

Id. at 72. M.V. testified to filming the incident, and the video was played at 

the hearing. Id. at 72-73. M.V. also testified that the complainant said, “stop, 

[Appellant], that hurts.” Id. at 81.

Conversely, Appellant testified that the sexual contact with the 

complainant was consensual. In describing the encounter, Appellant stated, 

“First we make out . . . and then . . . she says like somewhere along the line 

she says like that I’m worth it. And then she tells me to put it in.” Id. at 198-

99. Immediately thereafter, the Juvenile Court expressed its disbelief, 

stating: “I sincerely doubt that.” Id. at 199. The Juvenile Court subsequently 

explained:

Appellant’s argument, that there was no “explicit lack of consent,” 

is without merit. M.V., the eyewitness, immediately characterized 

[Appellant’s] action as rape. The Court viewed the video of the 

incident, and determined that [the complainant] was not fully 
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conscious/not in a condition to consent to the sexual contact. 

Similarly, Appellant’s argument that the victim’s inability to 

remember what occurred should result in a dismissal must also

fail. To the contrary, that the victim was so intoxicated that she 

had to be told that [Appellant] had intercourse with her, is further 

indication that she did not consent. The Court’s adjudication on 

the Indecent Assault charge, and not the other, more serious 

offenses, was a recognition that all of the parties engaged in poor 

behavior. Nonetheless, it was also clear to the Court that 

[Appellant], who was not intoxicated, took advantage of [the 

complainant’s] condition.

Juvenile Court Opinion, 2/6/18, at 3. Consistent with the foregoing – including 

the Juvenile Court’s observation of the video of the incident – the evidence 

was sufficient for the Juvenile Court to adjudicate Appellant of indecent assault 

pursuant to Section 3126(a)(1). 

For the above reasons, we affirm the adjudication of delinquency and 

dispositional order of the Juvenile Court.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/18
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