J-S03020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF D.F., A JUVENILE IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: D.F., A JUVENILE

No. 1483 EDA 2014

Appeal from the Dispositional Order February 18, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-JUV-0000436-2010

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

JUDGMENT ORDER BY PANELLA, J. FILED MARCH 30, 2015

D.F., a juvenile, appeals from the dispositional order entered February 

18, 2014, following his adjudication of delinquency on the charges of rape by 

forcible compulsion1and unlawful restraint.2 No relief is due. 

For a detailed recitation of the facts of this case, we direct the reader 

to the trial court’s April 16, 2014 opinion. See Trial Court Opinion, 4/16/14 

at 1-5 (unnumbered). D.F. was charged with the rape and unlawful restraint 

of a female acquaintance. On January 28, 2014, the juvenile court 

adjudicated D.F. delinquent on both charges. The juvenile court, in imposing

its dispositional order, committed D.F. to an indefinite period of detention 

and ordered that he register as a juvenile sex offender. See Disposition 

____________________________________________

1 18 Pa.C.S.A. § 3121(a)(1).

2 18 Pa.C.S.A. § 2902. 
J-S03020-15

- 2 -

Order, 2/18/14. On February 20, 2014, D.F. filed a post-disposition motion, 

which the juvenile court denied. This timely appeal followed. 

On appeal, D.F. alleges that the evidence was insufficient to support 

his adjudication of delinquency for the crime of rape.3 

When a challenge to the sufficiency of the evidence is made, our 

task is to determine whether the evidence and all reasonable 

inferences drawn therefrom, when viewed in the light most 

favorable to the Commonwealth as the verdict winner, were 

sufficient to enable the fact-finder to find every element of the 

crime charged beyond a reasonable doubt. In applying the above 

test, we may not weigh the evidence and substitute our 

judgment for the fact-finder. Moreover, we must defer to the 

credibility determinations of the [juvenile] court, as these are 

within the sole province of the finder of fact. The trier of fact, 

while passing upon the credibility of witnesses, is free to believe 

all, part, or none of the evidence.

In re J.M., 89 A.3d 688, 691 (Pa. Super. 2014), appeal denied, 102 A.3d 

986 (Pa. 2014) (citation omitted). 

We have reviewed D.F.’s brief, the relevant law, the certified record, 

and the well-written opinion of the Honorable Nathaniel C. Nichols. Having 

determined that the juvenile court’s opinion ably and comprehensively 

disposes of appellant’s issues on appeal, with appropriate reference to the 

record and without legal error, we will affirm on the basis of that opinion.

Dispositional order affirmed.

____________________________________________

3

In his statement of questions involved, D.F. additionally alleges that his 

adjudication of delinquency for rape was against the weight of the evidence. 

See Appellant’s Brief at 8. However, as D.F. does not address this issue in 

the argument section of his appellate brief, we consider this issue 

abandoned on appeal. 
J-S03020-15

- 3 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2015
J 

The trial testimony offered by the victim, a young woman, was clear, cogent and 

credible. She offered a plain-spoken rendition of the salient events of December 24, 

2012, in Upper Chichester Twp., Delaware County, Pennsylvania. The victim was 

r -~EX~H~IB!'!l~r-• 

IA_ 

I~ 

II. Te_stimgny. 

them ad sertettm. 

evidence (as to the forcible compulsion aspect of the Rape) and the weight of the 

evidence. We find no basis to support the juvenile's contentions and shall address 

placement at a facility where he was ordered to receive sex offender therapy. Counsel 

for the juvenile filed a post disposition motion assailed both the sufficiency of the 

At the disposition hearing, the court committed the juvenile to an indefinite period of 

2014 and adjudicated D.F. delinquent in connection with Rape and Unlawful Restraint. 

and related offenses. The court held its hearing on this Juvenile Petition on January 28, 

On June 25, 2013, this petition was filed charging the juvenile, D.F., with Rape 

r. Procedural Posture. 

NICHOLS, J. FILED: -1./ ~ i lo~ I~ 

OPINION 

a Juvenile Juvenile ID No. J2010-000436 

IN THE INTEREST OF D.F., NO. 20.13-000767 

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

JUVENILE DIVISION 

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The pair then walked around the neighborhood for a little while. Eventually, D.F. 

grabbed the young woman's cell phone again and held it in a manner that rendered the 

victim incapable of retrieving it. NT at 13. D.F. told her he would relinquish lt if she 

would walk to the corner to his deceased aunt's house. Id. at 14. She agreed and, 

while he again relinquished the phone to her, D.F. grabbed her hoodle-tvpe jacket in 

the back and was able to control her movements. NT at 14-15. D.F. asked the young 

lady if she wanted to see his house and while she said something like," ... no, not 

really .... " Nevertheless, he took her to the rear of a house where they went toward. an 

enclosed porch. NT at 16. His effort to enter the enclosed porch was thwarted by its 

friendly with D.F. Apparently, the juvenile was re1eased·from placement at Glen Mills 

School on a holiday "home pass." She acknowledged that her relationship with D.F. 

had a sexual component and that she was going to "meet up with hirn." NT at 9. See 

also NT at 77. After calling her cell phone, D.F. arrived at the young lady's home. 

When the two got together, D.F. became "playful" and, at one point, took the victim's 

cell phone and would not let her retrieve it. D.F. also was being a bit aggressive in 

some amorous advances which caused the victim to say to D.F., '' ... that he's going to 

be a rapist one day." NT at 11. While at the rear of the victim's house the victim's cell 

phone rang but she could not answer it because the juvenile retained possession of the 

device. Eventually, the vlcttrn regained possession of her phone from the juvenile and 

realized that her cousins had been trying to call her on her cell phone. She and the 

juvenile then returned to the front of the house where her cousins were located. NT at 

10¥12. 

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With his fingers still Inside her vagina, D.F. then maneuvered the victim to a 

parked car that was three to five steps away from the porch. NT at 19. She explained 

that he had "probably like one, maybe two [fingers Inside her]" as she "was 

walking/being dragged." NT at 78. When asked on cross examination if it was like 

having her feet dragged on the floor, she responded 1'No, no, but I had to walk .... If I 

stopped there, my vagina was going to get scratched up, Me walking, but it still got 

scratched up, NT at 78. In follow·up juvenile's counsel asked, 1'So he's dragging you a 

couple of steps with his fingers inside of you, you say your vagina - you - he's hurting 

your vagina and you do nothing to stop him?" Her reply: '1Right." NT at 79-80. 

The victim described the situation as she was positioned at the car: 1'He [D.F.] 

kind of had me like you-I'm going to say like it almost felt as If I was getting arrested. 

That's how I'm going to say, like I was getting arrested, but like face down kind of .. 

Like myself was on the car." NT at 20. The juvenile bent the victim over the car, 

pulled her pants down and inserted his penis into her vagina. NT at 20-21. In offering 

detalls as to her position with respect to the car, the victim said, "So I'm going to say 

the back of the car. I thlnk It was the back of the car. My - the top of my body is 

laying down flat on the back of the car on the trunk. I don't got enough leg room or 

locked door. NT at 16-17. While still gripping the victim's jacket, the juvenile then put 

his hand down the front of the victim's pants and inserted a finger into her vagina. NT 

17-18. The victim testified that his finger in her vagina felt horrible and painful. NT at 

18. 

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A. Afte.r he did - after he inserted himself into me, 

within me - I was just like I didn't like it . Like I 

didn't like it. I been - I told him that I didn't want to 

be there. I wanted him to stop. I wanted to go 

home. I wanted to be with my cousin, Catherine, my 

little sister, do you feel me? And that's when I was 

like, I'll do anything for you to get off me. . .. And 

then he said okay. And that's when he kind of like 

forced me to - this is uncomfortable, suck his penis 

should I say? 

Q. Okay. How - well let me, let me - you said to 

him, I'll do anything for you to get off me? 

A. Yes. 

Q. At that point, did he still have his penis in your 

vagina? 

A. Yes. 

Q. Okay. Did he take his penis out of your vagina 

then? 

A. Yes. 

Q. Okay. And did he turn you around or how did you 

- how did he get you into the position where you 

were? 

A. Because I kind of like turned, kind of turned. Like 

he didn't force me to turn, he didn't turn me, like 

physically turn me around. 

Q. Okay. 

A. But he kind of like when I got up, he kind of like 

not spun me, but he kind of llke pulled me a little bit 

and then I put his ... 

Q. How - you just went like this, so did he use his 

hand to push you down? 

& 84. In describing the continuing event, the victim testified: 

the car and that it had to have been broken while D.F. pulled her pants down. NT at 30 

said that the zipper to her pants were not broken before her encounter at the back of 

The victim was also questioned concerning physical evidence: her pants. She 

NT at 28. 

nothing. I can't move back. We were so tight together. I can't - I couldn't do nothing. 

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( discussion of specific, post-adjudication procedural issues related to juvenile 

See In re the Interest of D.S., 614 Pa. 650, 655-58, 39 A.2d 968, 971~73 (2012) 

determined that appeals in delinquency proceedings should track the appellate rules. 

Initially, we note that our supreme court has clarified the post-dispositlon 

handling status of juvenile cases In the absence of a legislative mandate. It has been 

III. Attributes of Review 

beyond reproach. NT at 126-27. 

presented during the victim's testimony. Thts witness' offerings were credible and 

the victim offered an explanation; an explanation that corroborated much of what was 

her. NT at 125-26. The question amplified the victim's tears. NT at 125-26. Finally, 

the cousin asked what was wrong and inquired whether D.F. had done something to 

124. The cousin found the victim behind a locked door and when she was admitted, 

away together, testified that the victim returned to the home upset and crying. NT 

The victim's cousin (who resides with the victim) and who saw the two walk 

NT at 22-23. 

A. Yeah, he used his hand. 

Q. Okay. And what part of your body did he touch 

with his hand? · A. My head. 

Q, He put his hand on your head and pushed you 

down? 

A. Yes. 

Q. Okay. And did he - so your head was near his 

penis. Correct? 

A. Correct. 

Q. Did he force you to put his penis into your mouth? 

A. Yes. 

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A motion for a new trial based on a claim that the verdict is against the 

weight of the evidence is addressed to the discretion of the trial court. 

Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751- 

52 (2000); Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 

1177, 1189 (1994). A new trial should not be granted because of a 

mere conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Wldme~ ... at 319-20, 

744 A.2d at 752. Rather, "the role of the trial judge is to determine that 

1notwithstanding all the facts, certain facts are so clearly of greater 

weight that to ignore them or to give them equal weight with all the 

facts is to deny justice.' "Id. at 3201 744 A.2d at 752 (citation omitted). 

involving adults, In re J.B., 69 A.3d 268, 278 (Pa.Super. 2013). 

weight of the evidence. Identical standards apply in delinquency proceedings and cases 

Juvenile's counsel posits a post-disposition motion which also questions the 

951 A.2d 1174, 1177 (Pa.Super. 2008). 

In re T.B., 11 A.3d 500, 504 (Pa.Super. 2010) quoting Commonwealth v. A. W. c; 

... all the evidence admitted at trial, together with all 

reasonable inferences therefrom, [are considered] in the light most 

favorable to the Commonwealth, [to determine If the court] ... 

could have found that each element of the offense[s) charged was 

supported by evidence and inferences sufficient in law to prove 

guilt beyond a reasonable doubt. This standard is equally applicable 

to cases where the evidence is circumstantial rather than direct so 

long as the combination of the evidence links the accused to the 

crime beyond a reasonable doubt. Moreover, it is the province of 

the [court] ... to pass upon the credibility of witnesses and the 

weight to be accorded the evidence produced. [As the trial court is 

t]he factfinder (, it] 1s free to believe all, part or none of the 

evidence. The facts and circumstances established by the 

Commonwealth need not be absolutely incompatible with the . 

[juvenile]'s innocence, but the question of any doubt is for the . 

[trial court) unless the evidence be so weak and inconclusive that 

as a matter of law no probablllty of fact can be drawn from the 

combined circumstances. 

proceeding: 

delinquency cases). In evaluating the sufficiency of the evidence in this juvenile 

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(2) by threat of forcible compulsion that would prevent resistance 

by a person of reasonable resolution; 

Rape 

A person commits a felony of the first degree when he engages in 

sexual intercourse with another person not one's spouse: 

(1) by forclble cornputston: · 

sufficiency of the evidence, the only focus rests upon the rape charge. We limit our 

discussion accordingly. The substance of the charge in pertinent part follows: 

While the juveni!e1s Post Disposition Motion speaks generally in terms of 

IV. Sufficiency of the Evidence. 

With these considerations in mind we assess the issues at hand. 

between appellate court review of the weight of the evidence and trial court review). 

Widmer, supra at 322, 744 A.2d at 753 (quotation omitted). See also 

Commonwealth v. Clay,_ Pa.~·_, 64 A.3d 1049, 1055-56 (2013)(contrast 

as to reach a dispassionate conclusion within the framework of the law ... ". See 

exercise of its review discretion "imports the exercise of judgment, wisdom and skill so 

saw and heard the witnesses and the presentation of other evidence), the trial court's 

process. In the context of a delinquency proceeding's bench trtal (where the trial court 

rendering a decision on the weight of the evidence does not presuppose a purposeless 

In re J~B,1 supra at 277. This court's reconsideration of lts own decision-making, in 

It has often been stated that 'a new trial should be awarded when the 

[fact-finder's] verdict is so contrary to the evidence as to shock one's 

sense of justice and the award of a new trial is imperative so that right 

may be given another opportunity to prevail.' Brown, 538 Pa. at 435, 

648 A.2d at 1189. 

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18 Pa.CS.A. § 3121. The victim of a rape need not resist. 18 Pa.C.S.A. § 3107 

(Resistance not required). "[T]he force necessary to support a conviction of rape ... 

need only be such as to establish lack of consent and to induce the [victim] to submit 

without additional resistance .... The degree of force required to constitute rape is 

relative and depends on the facts and particular circumstance of the case." 

Commonwealth v. Rhodes, 510 Pa. 537, 554, 510 A.2d 1217, 1226 

(1986)(comprehensive discussion of the contours of "forcible compulsion'') (citations 

omitted). 

In contrast to the above, juvenile's counsel directs our attention to a case where 

the appellate court focused on the victim's decision-making in succumbing to another's 

sexual overtures. Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988). 

The juvenile's counsel asserts that Mlinarich "implicitly" dictates when there is lack of 

consent, but no showing of physical force, threat of physical force, or psychological 

compulsion, there ls no forcible compulsion. 

In Mlinarich, the accused's wife volunteered to assume custody of a neighbor's 

daughter alter the young girl had been committed to a detention home for previous 

misconduct at her father's home. Id. at 249-50, 542 A.2d 1336-37. The defendant 

began to take liberties with the troubled teen when his wife was not at home. Id. at 

250-51, 542 A.2d 1337. He told the girl that if she failed to cooperate with his 

demands for sexual Intercourse, he would have her returned to the detention home. 

While the young girl protested and apparently experienced pain during these events, no 

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evidence presented reflected actual physical resistance or defendant's employment of 

force. Id. at 250-51, 542 A.2d 1337. 

Juvenile's counsel's misplaced reliance offers no refuge for D.F.'s conduct. The 

Mlinarich record lacked evidence of any other threat, force or compulsion as the 

prelude to a sexual encounter. This is not, as argued by juvenile's counsel, a situation 

where the juvenile employed verbal means to pressure or manipulate hls vulnerable 

victim during the encounter. Her will and corporeal autonomy were overborne by the 

juvenile's menacing actions from which she had no escape or relief other than through 

submission. 

The young victim offered a detailed explanation of events. Here, the victim was 

compelled by the juvenile to travel to the rear of a home (both through his vise-llke grip 

of the victim's clothing and his persisting insertion of his fingers into her pudendum). 

The victim explained that the digital component actually induced pain. Then, the 

juvenile's actions made. the victim feel as if she were physically handled (in being bent 

over the rear of a car) as if she was subject to an arrest. While the articulation is 

subject to some interpretation, this court viewed that testimony of a young person as 

indicative of a level of compulsion well beyond acquiescence (as in Mlinarich) to 

another's verbal statements. The physical evidence, the damage to the victim's zipper 

and her testimony regarding the mechanism of the damage further revealed an 

application of unwanted physical power. Combined, these showed that the juvenile 

acted as an assailant and employed force to achieve his sexual depredation. These 

factual distinctions draw a clear line between the circumstances In the two situations. 

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I Our attention has also been directed to another case which juridically distanced itself from Mllnarld1 based on its 

split decision. Commonweotth 11, Berkowitz, 415 Pa.Super, 505, 517 n.4, 609 A.2d 1338, 1344 n.4 

( I 992)(recogniz.ing Mllnuricl: as a "non-binding precedent"). In spite of this, the Berkowitz decision eventuated in 

the discharge of the rape conviction based upon a finding that the record did not support a finding of" forcible 

compulsion." Id. a1524-25, 609 A.2cl 1347-48, tif/'d537 Pa. 143, 152-53, 641 A.2d 1161, 1166(1994). 

2 See footnote 1, supra. 

whether the death occurred before, during or after sexual intercourse." See 18 

term includes, but is not limited to, compulsion resulting in another person's death, 

intellectual, moral, emotional or psychological force, either express or implied. The 

by providing a definition for "forcible compulsion": "Compulsion by use of physical, 

for sex crimes. See generally Note, 40 Vill.L.Rev. 193, 216-19 (1995). In 1995, as part 

of a special legislative session, the General Assembly clearly altered the legal landscape 

legislature. Ultimately, several changes were made to overhaul the statutory scheme 

The continued efficacy of Mlinarich must also be considered in an historical 

context. Both that decision and Berkowib2 triggered significant action in the state 

precedential effect). 

to the reasoning compelling the result shall such language be accorded binding 

(1997) (only where other opinions agree with decisional language in plurality opinion as 

also Commonwealth v. Henry, 550 Pa. 346, 365-66 n.6, 706 A.2d 313, 322 n.6 

decision carries precedential weight only as between the parties)(citation omitted). See 

v. Bethea, 574 Pa. 100, 111, 828 A.2d 1066, 1073 (2003)(the result of a plurality 

recognize that Mlinarich is not only limited by its factual circumstances, but as a 

plurality decision, it lacks precedential effect as to other cases'. See Commonwealth 

Mlinarich as the latest and current word on the issue of forcible compulsion, we 

Moreover, while D.F.'s counsel's argument seeks this court's endorsement of 

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precise points that established the elements of rape. Nor was counsel able to cause the 

court to find that the young woman was engaged in a prevarication. This court felt that 

Nevertheless, counsel was unable to shake the victim's certitude demonstrated on the 

recollection or a clear explanation of how certain specific events occurred. 

juvenile's representative emphasized points where the victim confessed a lack of 

cross-examination to identify potential weak points in the victim's testimony. The 

The court acknowledges that juvenile's counsel did a fine job in finding areas of 

challenge to the sufficiency of the evidence fails. 

of the Rape charge were firmly established by the evidence presented. Thus, the 

For the above reasons, we are satisfied, beyond a reasonable doubt, that the elements 

the victim in bringing her to a remote location and in situating her for the sexual act. 

the victim during intercourse and his use of force or the threatened use of force against 

the details. The evidence clearly and adequately described the juvenile's restraint of 

reminders that our analysis cannot be undertaken carelessly or without concern for all 

that offered In Mlinarich (and Berkowitz), these other matters also serve as 

While the facts presented demonstrably distinguish the juvenile's situation from 

Sen. Leg. J. 24 (Jan. 31, 1995). 

199? amendments, Senator Mellow, a cosponsor of the Senate bill, remarked: 

The important thing with this piece of legislation is that it 

closes a very important loophole that was pointed out to us by 

the Pennsylvania Supreme Court, because in Pennsylvania we 

should have the very clear understanding to anyone who wants 

to commit the violent crime of rape that in Pennsylvania "no 

means no" and the Senate Bill No. 2 will accomplish that. 

See 18 Pa.C.S.A. § 3101 (effective May 31, 1995 - Senate Bill 2). Upon passage of the 

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V. Weight of the Evidence. 

The previously referenced standard for assessing the weight of the evidence calls 

upon this court to consider whether the decision deviates so significantly from the 

evidence such as to "shock one's sense of justice." 

Again, we will look to Mlinarich as the basis for evaluation. Certainly this is not 

the equivalent of Mlinar/ch where the victim could have made " ... a deliberate choice 

to avoid the encounter even though the alternative may have been an undesirable 

one." The victim here had no choice and no options. She was cornered and, absent 

any ability to retreat, the juvenile forced himself upon the girl In the most despicable 

way. As noted in Mlinarich, the critical distinction rest upon a finding of volition. In 

Mlinarich, the victim possessed the ability to make a decision. If she elected against 

the desire of the perpetrator, she faced undesirable potential consequences (i.e. a 

threatened return to a juvenile facility). But, a choice (albeit a Hobson's choice), was 

available. Here, the involuntariness of the victim's submission is patent. The juvenile 

used his size and presence to prevent her from doing anything but acquiescing to his 

odious overtures. These facts meet the objective standard, beyond a reasonable 

doubt, to establish the degree of compulsion sufficient to establish the element 

necessary to support a charge of rape and a finding of delinquency against D.F. 

the victim outlined sufficient details, in a believable fashion such that the elements of 

the crimes were established. 

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031.nNI~~ 

Vo 0J JdVrk\1 'Uli 

1 \, n n I"\ ·-~ .. , 1 1,1 ·.: ,'·. n f' 

Ll:. I l., •.' ··' . I .... , ••• 

BY THE COURT: 

should be denied. 

reconfirmed the rightness of our original result. For that reason, the Juvenile's Appeal 

Our rigorous review of the record engendered by this appeal has only 

V. Conclusion. 

juvenile's delinquent act. 

the contrary, we harbor no hesitation in confirming that the evidence evinced the 

The evidence offered allows no place for the court's conscience to be shocked. Quite 

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