J-S13018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF D.L.F., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: D.L.F. A MINOR

No. 2018 EDA 2016

Appeal from the Dispositional Order May 31, 2016

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-JV-0000215-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED APRIL 26, 2017

D.L.F. appeals from the dispositional order entered in the Court of 

Common Pleas of Bucks County after he was adjudicated delinquent of rape 

of a child1and indecent assault of a person less than thirteen years of age2

in the Court of Common Pleas of Delaware County.3 Upon careful review, we 

affirm.

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3121(c).

2 18 Pa.C.S.A. § 3126(a)(7).

3 While the incident at issue in this matter occurred in Delaware County, the 

juvenile is a resident of Bucks County. Accordingly, pursuant to Pa.R.J.C.P. 

302, the Court of Common Pleas of Delaware County held an adjudicatory 

hearing and ruled on the offenses and transferred the matter to Bucks 

County for final disposition. 
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The Honorable Jeffrey L. Finley, P.J., of the Court of Common Pleas of 

Bucks County, Juvenile Division, set forth the pertinent facts and procedural 

history of this matter as follows:

On December 7, 2015, [D.L.F.] was charged with one count of 

[r]ape of a [c]hild, one count [of s]tatutory [s]exual [a]ssault: 4-

8 years of age, one count [of i]nvoluntary [d]eviate [s]exual 

[i]ntercourse with a person less than sixteen years of age, one 

count [of] sexual assault, one count [of a]ggravated [i]ndecent 

[a]ssault of [c]hild, one count of [a]ggravated [i]ndecent 

[a]ssault [of] a person less than thirteen years of age, one count 

of [i]ndecent [e]xposure, and one count of [i]ncest of a [m]inor 

– [c]omplainant [u]nder thirteen years of age for allegedly 

having sexually assaulted his seven year old step-sister in 

Delaware County, Pennsylvania.

On April 7, 2016, the Honorable Nathaniel C. Nichols of the 

Juvenile Court of Delaware County held an adjudicatory hearing 

on the above charges, but continued the hearing to make a 

determination. On April 14, 2016 [Judge] Nichols adjudicated 

[D.L.F.] delinquent and entered an [a]djudicatory [h]earing 

[o]rder. The [o]rder held [that D.L.F.] did not admit to any of 

the offenses alleged in the [p]etition, he was [] to be removed 

from the home, the [c]ourt deferred its determination as to 

whether [D.L.F.] was in need of treatment, supervision, or 

rehabilitation, but [o]rdered that he was adjudicated delinquent 

and the disposition of [D.L.F.] was transferred to Bucks County. 

All other counts were nolle prossed. The matter was then 

transferred to Bucks County. 

On April 18, 2016, the Honorable Rea B. Boylan entered a 

[p]ost-[a]djudicatory [d]etention/[s]helter [c]are [h]earing 

[o]rder which held that secure detention of [D.L.F.] was 

necessary and alternatives were not appropriate pursuant to the 

Juvenile Act . . ., and [D.L.F.] was adjudicated delinquent on the 

charges of [r]ape of a [c]hild and [i]ndecent [a]ssault. On April 

25, 2016, [Judge] Finley entered a dispositional hearing order 

and indicated that the reason[s] for disposition were based on 

the fact that [D.L.F.] is in need of treatment, rehabilitation, and 

supervision by the Juvenile Probation Department. It was 

further ordered that disposition was deferred and [D.L.F.] was to 

remain in detention pending a psycho-sexual evaluation.
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On May 13, 2016, a [d]ispositional [h]earing was held before 

[Judge] Finley and the [o]rder indicated that the reason for 

disposition was to review the detention status and it was further 

ordered that[,] due to the serious nature of the charges and the 

need to complete the psycho-sexual evaluation, the disposition 

for [D.L.F. was] deferred and [D.L.F. was to] remain in 

detention. On May 31, 2016, after a dispositional hearing was 

held, the reasons for disposition indicated that [D.L.F.] is in need 

of treatment, rehabilitation, and supervision by the Juvenile 

Probation Department, [D.L.F.] was to be removed from the 

home and placed in a residential facility at George Junior 

Diagnostic Unit. 

Trial Court Opinion, 9/1/16, at 1-3 (cite to record and footnotes omitted).

This timely appeal follows, in which D.L.F. raises the following issues 

for our review:

1. Did the Delaware County Juvenile Court err in finding beyond 

a reasonable doubt that [D.L.F.] committed the charges of rape 

of a child[?]

2. Did either of the juvenile courts err in failing to make a 

determination that [D.L.F.] was in need of treatment, 

supervision, or rehabilitation pursuant to [Pa.R.J.C.P.] 409, thus 

incorrectly assuming [he] was delinquent?

Brief of Appellant, at 4. 

D.L.F. first asserts that the Commonwealth presented insufficient 

evidence to prove he committed rape of a child. 

When reviewing challenges to the sufficiency of the evidence, we 

evaluate the record in the light most favorable to the 

Commonwealth as the verdict winner, giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence. Commonwealth v. Duncan, 932 A.2d 226, 231 (Pa. 

Super. 2007) (citation omitted). “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.” Id. (quoting 

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 
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2005)[.] However, the Commonwealth need not establish guilt 

to a mathematical certainty, and it may sustain its burden by 

means of wholly circumstantial evidence. Id. Moreover, this 

Court may not substitute its judgment for that of the factfinder, 

and where the record contains support for the convictions, they 

may not be disturbed. Id. Lastly, we note that the finder of fact 

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

Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super. 

2006).

Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa. Super. 2008).

A person commits the offense of rape of a child, a felony of the first 

degree, when the person engages in sexual intercourse with a complainant 

who is less than 13 years of age. 18 Pa.C.S.A. § 3121. Sexual intercourse, 

“[i]n addition to its ordinary meaning, includes intercourse per os or per 

anus, with some penetration however slight; emission is not required.” 18 

Pa.C.S.A. § 3101.

Here, D.L.F. stipulated that the victim was under the age of thirteen 

and challenges only the court’s finding that sexual intercourse occurred. 

Specifically, D.L.F. argues that victim’s testimony did not establish that there 

was “penetration however slight.” This assertion is belied by the record. 

Upon direct examination by the Commonwealth, the victim testified as 

follows:

Q: What was the first thing that happened after your underwear 

[was taken] off?

A: He put his private part in my bottom.

Q: Were you able to see his private part?

A: No.

. . . 
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Q: You said he did put it in you. Is that what you said?

A: Yes.

Q Where did he put it?

A: In my bottom.

Q: Did it go inside of you[?]

A: No. It slipped downwards.

N.T. Adjudicatory Hearing, 4/7/16, at 58-59 (emphasis added).

D.L.F. asserts that, because the victim stated that his penis slipped 

downwards, her testimony did not establish penetration, however slight. 

However, the victim clearly stated three times that D.L.F. put his penis “in” 

her bottom. Viewed in the light most favorable to the Commonwealth, 

Yasipour, supra, this testimony was sufficient to establish penetration. 

In support of his sufficiency argument, D.L.F. also claims that the 

victim’s testimony was not to be believed in light of the testimony of other 

Commonwealth witnesses. However, a claim that the finder of fact should 

not have believed the victim’s version of events goes to the weight, not the 

sufficiency, of the evidence. Commonwealth v. W.H.M., Jr., 932 A.2d 

155, 160 (Pa. Super. 2007). Challenges to the sufficiency of the evidence 

and the weight of the evidence are separate claims involving different 

standards of review and relief. See Commonwealth v. Widmer, 744 A.2d 

745, 751–752 (Pa. 2000). Here, D.L.F. has neither preserved nor 

specifically raised a claim that the verdict was against the weight of the 

evidence. Accordingly, this argument is waived. See Commonwealth v. 

Priest, 18 A.3d 1235 (Pa. Super. 2011) (weight of the evidence claim 
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waived for failure to present claim in the lower court, either orally or in 

writing before sentencing or in a post-sentence motion, and failure to 

present argument in court-ordered statement, pursuant to Pa.R.Crim.P. 607; 

Pa.R.A.P. 1925(b)(4)(vii)).

D.L.F. also asserts that the trial judge’s verdict was inconsistent and 

that if the evidence was insufficient to sustain the charges of statutory 

sexual assault, sexual assault, aggravated indecent assault or incest, then 

the evidence was insufficient to sustain a conviction for rape of a child. 

D.L.F.’s claim fails. While conceding that juries are permitted to render 

inconsistent verdicts, D.L.F. argues, without citation to authority, that the 

same does not apply where the trial court is the fact finder, as a judge is 

“cognizant of the elements of the crime charged.” Brief of Appellant, at 14. 

This assertion is patently meritless. Indeed, the rule in Pennsylvania is that 

a judge sitting as finder of fact possesses the power to render inconsistent 

verdicts. Commonwealth v. Reed, 326 A.2d 356 (Pa. 1974); 

Commonwealth v. Carter, 282 A.2d 375 (Pa. 1971). “To deny judges that 

power would be to reduce the desirability of trial by a judge alone. We have 

consistently held that a decision by a judge without a jury has the same 

efficacy as a jury verdict.” Commonwealth v. Harris, 360 A.2d 728, 729 

(Pa. Super. 1976). Accordingly, this argument garners D.L.F. no relief.

In his second and final claim on appeal, D.L.F. asserts that the juvenile 

court failed to comply with the Rules of Juvenile Court Procedure by 

neglecting to make a determination that he was in need of treatment, 
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supervision, or rehabilitation as required under 42 Pa.C.S.A. § 6341(b) and 

R.J.C.P. 409. Section 6341(b) requires the following:

(b) Finding of delinquency.-- If the court finds on proof beyond a 

reasonable doubt that the child committed the acts by reason of 

which he is alleged to be delinquent it shall enter such finding on 

the record and shall specify the particular offenses, including the 

grading and counts thereof which the child is found to have 

committed. The court shall then proceed immediately or at a 

postponed hearing, which shall occur not later than 20 days after 

such finding if the child is in detention or not more than 60 days 

after such finding if the child is not in detention, to hear 

evidence as to whether the child is in need of treatment, 

supervision or rehabilitation and to make and file its 

findings thereon. This time limitation may only be extended 

pursuant to the agreement of the child and the attorney for the 

Commonwealth. The court's failure to comply with the time 

limitations stated in this section shall not be grounds for 

discharging the child or dismissing the proceeding. In the 

absence of evidence to the contrary, evidence of the commission 

of acts which constitute a felony shall be sufficient to sustain a 

finding that the child is in need of treatment, supervision or 

rehabilitation. If the court finds that the child is not in need of 

treatment, supervision or rehabilitation it shall dismiss the 

proceeding and discharge the child from any detention or other 

restriction theretofore ordered.

42 Pa.C.S.A. § 6341(b) (emphasis added). A determination as to whether 

the juvenile is in need of treatment is required “even where the delinquent 

act constitutes a felony because, while the commission of such an act 

presumptively supports a finding that the juvenile is in need of treatment 

and supervision (and thus can be adjudicated delinquent), the juvenile court 

must still make that finding after allowing for other evidence.” In the 

Interst of M.W., 39 A.3d 958, 967 n.9 (Pa. 2012) (emphasis added). 
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As noted above, the adjudication of delinquency in this case occurred 

before Judge Nichols in Delaware County, but disposition was transferred to 

D.L.F.’s home county of Bucks. In his Rule 1925(a) opinion, Judge Nichols 

conceded that he did not make an express finding that D.L.F. was in need of 

treatment before adjudicating him delinquent, but that such a finding “was 

implicit in this court’s action in transferring the case to Bucks County.” Trial 

Court Opinion, 9/16/16, at [3]. This is insufficient. Under our Supreme 

Court’s holding in M.W., a separate finding that a juvenile is in need of 

treatment must be made after allowing for other evidence, which Judge 

Nichols did not do. Accordingly, D.L.F.’s assignment of error possesses 

merit. Unfortunately for D.L.F., however, he has waived this claim and, 

thus, is entitled to no relief.

Pursuant to Rule of Appellate Procedure 302, issues not raised in the 

trial court are waived and may not be raised for the first time on appeal. 

Pa.R.A.P. 302(a). Here, D.L.F. did not object, at the hearing before Judge 

Nichols, to the court’s failure to hear additional evidence and/or make a 

specific determination that he was in need of treatment before adjudicating 

him delinquent. Nor did he raise any objection at the dispositional hearing 

before Judge Finley in Bucks County.4 Requiring a timely and specific 

objection in the trial court ensures that the trial judge has a chance to 

____________________________________________

4 We note that D.L.F. was represented by counsel at all relevant 

proceedings.
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correct alleged errors. Faherty v. Gracias, 874 A.2d 1239, 1249 (Pa. 

Super. 2005). Where no timely objection is lodged, the issue is waived on 

appellate review. Id. Because D.L.F. did not timely object to the court’s 

failure to make a specific finding that he was in need of treatment prior to 

adjudicating him delinquent, we are constrained to conclude that he has 

waived this issue on appeal.

Dispositional order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2017