J-S58030-15

* Retired Senior Judge assigned to the Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.N.B., A MINOR, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

 

 No. 568 MDA 2015

Appeal from the Dispositional Order of February 25, 2015

In the Court of Common Pleas of Lancaster County

Juvenile Division at No(s): CP-36-JV-0000021-2014

CP-36-JV-0000022-2014

BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED JANUARY 14, 2016

Appellant, B.N.B., appeals from the order of disposition entered on 

February 25, 2015. We affirm.

The juvenile court provided a thorough and well-written summary of 

the underlying facts and procedural posture of this case. As the juvenile 

court explained, following an adjudicatory hearing, it concluded that the 

Commonwealth proved the following facts beyond a reasonable doubt:

[J.H., who was born in August 2001, was one of Appellant’s 

victims. Appellant] and J.H. often played together at 

[Appellant’s] residence in Columbia, Pennsylvania. On one 

occasion [] when J.H. was [11] years old, she played hide 

and seek with [Appellant] and her brother in [Appellant’s] 

bedroom. When the children began playing, J.H. and 

[Appellant] began as hiders and J.H. hid herself in a dark 

closet. [Appellant] later entered the closet and sat next to 

J.H. While there, [Appellant] laid his leg across the leg of 

J.H., making her feel “very uncomfortable.” Later [that 

day], when [Appellant] became the seeker, J.H. hid 

between a pair of mattresses. When [Appellant] found J.H., 

he reached between the mattresses and began rubbing his 
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hand across J.H.’s butt for a period of at least five [] 

seconds. J.H. responded by asking [Appellant] to stop, but 

[Appellant] persisted in touching her butt. J.H. then moved 

away to stop the touching and later told her [m]other about 

the incident.

. . .

[A.H.W., who was born in February 1998, was another of 

Appellant’s victims.] A.H.W. often stayed overnight at the 

residence of [Appellant, who was] her cousin. A.H.W. would 

sleep in [Appellant’s] bedroom along with her siblings. 

A.H.W. testified that during the night[, Appellant] would 

touch her vaginal area and breasts while A.H.W. and her 

siblings slept in the same bedroom. The last occasion 

A.H.W. could recall of [Appellant] touching her was when 

she was [10 years old]. [At this time, Appellant] 

approached [A.H.W.] at night and said nothing. Like on 

prior occasions, [Appellant] proceeded to touch her vaginal 

area and her breasts. A.H.W. could not recall whether she 

was clothed or not at the time. However, A.H.W. could 

recall that on [the prior] occasions[,] she was clothed. 

A.H.W. testified that she would tell [Appellant] to stop but 

could not recall whether [Appellant] stopped on this 

occasion. A.H.W. did not immediately tell her family of the 

incident out of fear of the [perceived] consequences. [Yet, 

in August 2013,] A.H.W. [] reveal[ed] that [Appellant had] 

touched her private areas. . . .

[In 2014, Appellant was arrested and accused of committing 

the above acts, which, if Appellant were an adult, would 

have constituted two counts of indecent assault upon a 

person who is less than 13 years of age.1 With respect to 

the above acts, the relevant portions of the juvenile 

petitions filed against Appellant declared:

[Juvenile Petition 21] COUNT #2: (Indecent Assault) 

(M1)

____________________________________________

1 18 Pa.C.S.A. § 3126(a)(7).
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In violation of section 3126(a) of the Pennsylvania 

Crimes Code, [Appellant], on or between 1 January 

2013 and 15 July 2013, did unlawfully have indecent 

contact with [J.H.] to come into contact with seminal 

fluid, urine or feces for the purpose of arousing sexual 

desire in the person or the complainant and when the 

other person is less than 13 years of age; to wit: 

[Appellant] did intentionally touch the victim J.H. (DOB 

[August 2001]), on her buttocks when the victim [was] 

less than 13 years of age, in a bedroom of the home 

located at [___] Street, Columbia, Pennsylvania.

. . .

[Juvenile Petition 22] COUNT #1: (Indecent Assault) 

(M1)

In violation of section 3126(a) of the Pennsylvania 

Crimes Code, [Appellant], on or between 1 January 

2007 and 15 July 2012, did unlawfully, have indecent 

contact with [A.H.W.], or caus[ed] [A.H.W.] to have 

indecent contact with the person or intentionally cause[d 

A.H.W.] to come into contact with seminal fluid, urine or 

feces for the purpose of arousing sexual desire in the 

person or the complainant and when the other person is 

less than 13 years of age; to wit: [Appellant] did 

intentionally touch the victim, A.H.W. (DOB: [February 

1998]) when she was 8 or 9 years old on her chest and 

vaginal area with his hand at [___] Street, Marietta, 

Pennsylvania.

Juvenile Petition 21, 1/17/14 at 2; Juvenile Petition 22, 

1/17/14, at 1].

At the conclusion of the [June 5, 2014 adjudicatory] 

hearing, the [juvenile court] adjudicated [Appellant] 

delinquent [for committing the two acts of indecent assault 

and, on February 25, 2015, the juvenile court entered its 

order of disposition in the matter, finding Appellant in need 

of guidance and supervision and placing Appellant on 

probation under the supervision of the county juvenile 

probation office.] 
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Juvenile Court Opinion, 5/22/15, at 4-5 (internal citations omitted).

Appellant filed a timely notice of appeal from the order of disposition 

and Appellant now raises the following claim to this Court:2

Was the evidence presented by the Commonwealth 

insufficient to sustain an adjudication of delinquency where 

the Commonwealth was unable to establish with reasonable 

certainty dates whe[n] the incidents were alleged to have 

occurred?

Appellant’s Brief at 5.

Appellant challenges the sufficiency of the evidence supporting his 

adjudication of delinquency. We review Appellant’s sufficiency challenge 

under the following standard:

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 

____________________________________________

2 The juvenile court ordered Appellant to file and serve a concise statement 

of errors complained of on appeal, pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(b). Appellant complied and listed the above 

sufficiency of the evidence claim in his Rule 1925(b) statement. Appellant’s 

Rule 1925(b) Statement, 4/27/15, at 1.
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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 

[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, 1252-1253 (Pa. Super. 2012) (internal quotations 

and citations omitted). Further, the “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.” Commonwealth v. Castelhun, 

889 A.2d 1228, 1232 (Pa. Super. 2005).

According to Appellant, the evidence was insufficient to support his 

adjudications because the Commonwealth was unable to “prove the date of 

the offense[s] with sufficient particularity to sustain [the adjudications].” 

Appellant’s Brief at 13. Within Appellant’s brief to this Court, Appellant does 

not claim that the Commonwealth’s alleged failings either placed an undue 

burden upon or caused him to forgo any specific defense. Instead, Appellant 

essentially claims that the periods of time – within which the Commonwealth 

proved that Appellant’s two instances of illegal conduct occurred – were per 

se “insufficient to sustain [the] adjudication[s] of delinquency in this case.”3 

Id. at 16. This claim fails.

____________________________________________

3 The “date of the offense” is not an element of the crime of indecent 

assault. Nevertheless, as this Court has held, a claim that the 

Commonwealth failed to “fix the date when [the] alleged offenses occurred 

(Footnote Continued Next Page)
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On appeal, Appellant relies primarily upon the Pennsylvania Supreme 

Court’s opinion in Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975). In 

the Devlin case, Mr. Devlin was arrested and accused of committing sodomy 

against a 22-year-old individual “who had the mental ability of a first or 

second grade child and the emotional stability of an even younger child.” 

Id. at 889. At trial, the Commonwealth presented evidence that Mr. Devlin 

had sodomized the victim one time – and that “the crime occurred some 

time within a [14-]month period from February 1971 to April 1972.” Id.

At the conclusion of the Commonwealth’s case, Mr. Devlin “demurred 

to the prosecution’s evidence on the ground that the Commonwealth had not 

fixed the date of the crime with sufficient particularity, and thus the charge 

was impossible to defend.” Id. at 890. The trial court denied Mr. Devlin’s 

motion and, after Mr. Devlin was convicted of sodomy, Mr. Devlin appealed 

(Footnote Continued) _______________________

with reasonable certainty [at trial]” is one that implicates the sufficiency of 

the evidence. Commonwealth v. Robinson, 462 A.2d 840, 841-842 (Pa. 

Super. 1983); see also Commonwealth v. Groff, 548 A.2d 1237, 1241 

(Pa. Super. 1988) (“[the a]ppellant faults his trial counsel for failing to 

preserve the issue of whether the Commonwealth denied him due process of 

law. More specifically, appellant maintains that the Commonwealth violated 

his rights under Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975), 

which held that the prosecution must fix the date when an alleged offense 

occurred with reasonable certainty. A Devlin claim is a form of motion in 

arrest of judgment; if the claim is meritorious, the proper remedy is to 

vacate judgment of sentence and discharge the defendant”) (internal 

citations omitted); Commonwealth v. Manchas, 633 A.2d 618 (Pa. Super. 

1993) (“[t]he proper procedure to challenge the sufficiency of the evidence 

is by a post-verdict motion in arrest of judgment”) (internal citations 

omitted).
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to the Pennsylvania Supreme Court. The sole issue before the Supreme 

Court was “whether the Commonwealth proved the date of the crime with 

sufficient particularity to uphold the conviction.” Id. at 889.

In analyzing the claim, the Devlin Court initially quoted, with 

approval, an earlier statement from this Court regarding the applicable rule 

of law: 

It may be conceded that in the prosecution of crimes of the 

kind here involved the Commonwealth is not required to 

prove their commission on the date laid in the indictment, 

but, failing in that, we think it has the burden, in order to 

sustain a conviction, of proving their commission upon some 

other date, fixed with reasonable certainty and being within 

the prescribed statutory period.

In other words, where a particular date or day of the week 

is not of the essence of the offense, the date laid in the 

indictment is not controlling, but some other reasonably 

definite date must be established with sufficient particularity 

to advise the jury and the defendant of the time the 

Commonwealth alleges the offense was actually committed, 

and to enable the defendant to know what dates and period 

of time he must cover if his defense is an alibi.

We do not understand the rule of the cases to be that the 

Commonwealth need not prove any date at all, but can 

sustain a conviction merely by proving that the offense 

must have been committed upon some unshown date within 

the statutory period. Our attention has not been called to 

any case so holding.

Devlin, 333 A.2d at 890 (internal quotations, corrections, and citations 

omitted), quoting Commonwealth v. Levy, 23 A.2d 97, 99 (Pa. Super. 

1941).
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As the Devlin Court explained, the above rule of law – that the “date 

of the commission of the offense must be fixed with reasonable certainty” –

is required by both the Due Process Clause of the 14th Amendment to the 

United States Constitution and Article 1, Section 9, of the Pennsylvania 

Constitution. Devlin, 333 A.2d at 891. Specifically, the Devlin Court held, 

the rule was required in order to protect the defendant’s “opportunity to 

defend” himself and, thus, to protect the defendant’s procedural due process 

rights. Id. According to the Devlin Court:

Under the Federal Constitution, if the opportunity to defend 

is inadequate, the defendant is denied due process of law. 

While not capable of exact definition, the basic elements of 

procedural due process are adequate notice, opportunity to 

be heard, and a chance to defend one-self before a fair and 

impartial tribunal having jurisdiction of the case. In our 

adversary system of justice, it is axiomatic that a party is 

entitled to a fair hearing. The Federal Due Process Clause 

and the State “law of the land” provision guarantee the 

fundamental fairness of that hearing. To defend a charge of 

conduct occurring anywhere within a [14]-month period 

was, for this appellant, a fundamentally unfair burden

Id. (internal quotations and citations omitted) (emphasis added). 

The Devlin Court then went on to explain why, “for this appellant,” to 

“defend a charge of conduct occurring anywhere within a [14]-month period 

. . . was a fundamentally unfair burden.” Id. (emphasis added). As the 

Devlin Court explained, the unreasonably large time period prejudiced Mr.

Devlin’s ability to defend himself in three ways. First, the Devlin Court held, 

since “the credibility of the victim was a serious issue” at trial, the 

Commonwealth’s failure to provide Mr. Devlin with “a sufficiently particular 
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period of time to defend [] precluded [Mr. Devlin] from further attacking the 

credibility of the victim by showing (1) behavior of the victim after the 

incident which was inconsistent with the extremely severe conduct to which 

the victim was allegedly subjected, and (2) the physical and emotional 

trauma which would have necessarily resulted therefrom.” Id. Second, Mr. 

Devlin’s defense was prejudiced because the expansive time frame 

prevented Mr. Devlin from “attempt[ing] to prove that the victim did not 

visit his house on the date in question.” Id. Finally, the Devlin Court held, 

“notification of an alibi defense was a futile gesture in this case because the 

date laid in the indictment was obviously an arbitrary one . . . [and] it would 

have been an impossible burden for [Mr. Devlin] to offer an alibi defense for 

a [14]-month period.” Id. at 892.

The Supreme Court thus vacated Mr. Devlin’s judgment of sentence 

and ordered him discharged. However, before it did so, the Devlin Court 

explained that its holding was not susceptible to a per se rule. According to 

the Devlin Court: 

Here, as elsewhere, [t]he pattern of due process is picked 

out in the facts and circumstances of each case. Du[e] 

process is not reducible to a mathematical formula. 

Therefore, we cannot enunciate the exact degree of 

specificity in the proof of the date of a crime which will be 

required or the amount of latitude which will be acceptable. 

Certainly the Commonwealth need not always prove a 

single specific date of the crime. Any leeway 

permissible would vary with the nature of the crime 

and the age and condition of the victim, balanced 

against the rights of the accused.
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Id. (internal quotations and citations omitted) (emphasis added).

Thus, in Devlin, our Supreme Court refused to adopt a per se rule 

regarding the “degree of specificity in the proof of the date of a crime.” Id. 

Instead, the Supreme Court “opted for a balancing approach to resolve 

conflicting interests of the accused vis-à-vis the victim [and the 

Commonwealth] when it came to the specificity required to be proven as to 

the time-frame of the alleged crime.” Commonwealth v. Fanelli, 547 A.2d 

1201, 1204 (Pa. Super. 1988) (en banc), abrogated on other grounds by 

Commonwealth v. Hutchinson, 556 A.2d 370 (Pa. 1989). 

In the case at bar, Appellant’s Devlin claim immediately fails, as 

Appellant “has [not] asserted how the lack of specificity in the information or 

the victim’s testimony rendered him unable to prepare a defense to the 

charges brought against him.” See Commonwealth v. Brooks, 7 A.3d 

852, 860 (Pa. Super. 2010) (holding that the defendant’s Devlin claim failed 

because the defendant failed to explain how he was prejudiced by the 

Commonwealth’s failure to fix the date of the crime with more specificity). 

Certainly, Appellant has not raised any claim or made any assertion that the 

Commonwealth’s failure to prove the dates of the commission of the 

offenses with greater specificity either placed an undue burden upon or 

caused him to forgo any specific defense. See Appellant’s Brief at 11-18. 

Therefore, since Appellant has not raised any claim of prejudice, the Devlin

balancing test requires that we conclude that, in this case, the 

Commonwealth’s failure to prove the dates of the crimes with greater 
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specificity did not violate Appellant’s due process rights and that Appellant’s 

sufficiency of the evidence claim fails as a matter of law.

Order of disposition affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/14/2016