In the Int. of: M.C.K., Appeal of: M.C.K.

J-A26026-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: M.C.K., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: M.C.K. :

:

:

:

: No. 450 WDA 2024

Appeal from the Dispositional Order Entered February 15, 2024

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

No(s): CP-62-JV-0000094-2023

BEFORE: BOWES, J., BECK, J., and BENDER, P.J.E.

MEMORANDUM BY BECK, J.: FILED: February 10, 2025

M.C.K. appeals from the dispositional order entered by the Warren

County Court of Common Pleas (“juvenile court”) subjecting him to a five-year

period of intensive probation and outpatient treatment. We affirm.

E.S., who was then fourteen years old, began dating M.C.K., then

thirteen, on July 5, 2022. They started having sex around November of 2022.

At M.C.K.’s suggestion, the two later “tried … consensual non-consent,” which

E.S. described as “like pretend rape.” N.T., 11/21/2023, at 23. The two

created a safe word to be used if E.S. wanted M.C.K. to stop. Initially, M.C.K.

would stop when she used their safe word. Id. at 28. Eventually, M.C.K.

asked her to try anal sex, which she consented to the first time. Id. at 29.

However, she experienced pain and started crying, and M.C.K. stopped. Id.

at 30. She told him that she did not want to have anal sex again, but M.C.K.

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continued asking and they had anal sex “[s]omewhere between four and

eight” more times. Id. at 31. E.S. testified that she did not consent to any

instance after the first.

E.S. testified that, aside from the first time, the incidents all generally

happened the same way. Id. at 40. M.C.K. would pull her pants and

underwear down and begin inserting his penis into her anus. She would “ask[]

him to stop and repeat[] the safe word” that the two established. Id. at 41-

42. M.C.K. would not stop, tell her “to shut up,” id. at 42, and call her “his

sex doll[,] … a whore and a slut.” Id. at 44. At first, E.S. would try to leave

the bed, but M.C.K. would push her back down with his hands. Id. at 42.

“[T]owards the end[,] [she] started just giving up” and did not try to resist.

Id. at 43. She confirmed that she said the safe word on each occasion, and

each time he ignored the word and would continue. Id. at 60. She did not

tell anyone about the rapes until after they broke up on August 5, 2023, when

E.S. caught him cheating. Id. at 49.

E.S. eventually disclosed the acts and sat for a forensic interview with

the Children’s Advocacy Center. The Commonwealth thereafter filed a petition

alleging that M.C.K. was delinquent on November 3, 2023, citing thirty acts

that would be crimes if committed by an adult. The Warren County Juvenile

Probation Department (“Probation Department”) placed M.C.K. in shelter care

at the Keystone Adolescent Center that same day on their own initiative. The

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juvenile court held a detention hearing on November 6, 2023, and continued

the placement.

The juvenile court conducted an adjudication hearing on November 21,

2023, at which E.S. testified for the Commonwealth. The court determined

that the Commonwealth met its burden of proof for twenty-eight of the counts1

“based upon … four incidents of anal sexual assault by forcible compulsion.”

Id. at 241-42. Following postponements requested by both parties, the

juvenile court held the dispositional hearing on February 15, 2024, at the

conclusion of which M.C.K. was adjudicated delinquent. M.C.K. was placed on

intensive probation for a period of five years, along with court-ordered

outpatient sexual therapy. M.C.K. filed a notice of appeal and a concise

statement as ordered, raising twenty-two points of error. M.C.K. now presents

nine issues for our review:

(1) Whether the removal of M.C.K. from his home and continued

pre-adjudicatory placement in shelter care violated the Juvenile

Act and/or M.C.K.’s rights to due process.

(2) Whether the Commonwealth violated the Pennsylvania Rules

of Juvenile Court Procedure and M.C.K.’s right to due process by

withholding mandatory discovery materials from the defense.

(3) Whether the [juvenile] court abused its discretion in ruling on

evidentiary matters related to electronic communications.

(4) Whether the [juvenile] court abused its discretion in citing the

Rape Shield Law to disallow cross-examination of the purported

victim regarding her past relationships.

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1 The Commonwealth conceded that the remaining two counts of strangulation

should be dismissed.

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(5) Whether the [juvenile] court erred and/or abused its discretion

in its role as fact-finder by failing to weigh the credibility of the

purported victim.

(6) Whether there was insufficient evidence to allow the [juvenile]

court to find beyond a reasonable doubt that M.C.K. committed

the alleged offenses, where the Commonwealth failed to prove

beyond a reasonable doubt that M.C.K. committed any alleged act

without the purported victim’s consent.

(7) Whether the [juvenile] court erred and/or abused its discretion

in failing to weigh and consider M.C.K.’s mistake of fact regarding

the purported victim’s consent.

(8) Whether there was insufficient evidence to allow the [juvenile]

court to find beyond a reasonable doubt that M.C.K. committed

any offense an element of which is forcible compulsion, where the

Commonwealth failed to prove the element of forcible compulsion

beyond a reasonable doubt.

(9) Whether the [juvenile] court abused its discretion in finding

that M.C.K. committed the alleged offenses, where said findings

were the result of manifest unreasonableness, partiality, and/or

prejudice, as evidenced by the court’s statements regarding work

on behalf of juveniles and the credibility of purported victims.

M.C.K.’s Brief at 3-4.2

Pre-disposition detention

M.C.K.’s first claim pertains to his detention beginning on November 3,

2023, the day the delinquency petition was filed. Id. at 9-14. A Probation

Department officer signed an order committing M.C.K. to a shelter. The court

held a hearing three days later and entered an order finding that probable

cause existed for the offenses, and that it would be contrary to M.C.K.’s

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2 The argument section of M.C.K.’s brief is divided into eight parts. The ninth

claim listed has been abandoned. In any event, it is duplicative of the fifth

issue in its substance.

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welfare to allow him to remain at his residence. Juvenile Court Order,

11/6/2023 at 1. The order acknowledged that services were not offered to

prevent M.C.K.’s removal but determined that the nature of the offenses and

need to protect E.S. constituted an emergency.3 Id. The juvenile court held

review hearings as to the continued need for M.C.K.’s detention throughout

these proceedings until the disposition, concluding each time that M.C.K.

should remain in shelter.4 M.C.K. argues that the “[Probation Department]

and/or the court” failed “to consider less-restrictive pre-adjudicatory

alternatives than shelter care,” and that these failures “violated both the

express edicts of the Juvenile Act and M.C.K.’s right to due process.” M.C.K.’s

Brief at 13.

This issue is moot due to M.C.K.’s release. “The mootness doctrine

requires that an actual case or controversy exist ‘at all stages of review, not

merely at the time the complaint is filed.’” Int. of N.E.M., 311 A.3d 1088,

1094 (Pa. 2024). A case is moot if our decision “when rendered, cannot have

any practical effect on the existing controversy.” In re J.G., 320 A.3d 1286,

1290 (Pa. Super. 2024) (citation omitted). Three exceptions apply: “1) the

case involves a question of great public importance, 2) the question presented

is capable of repetition and apt to elude appellate review, or 3) a party to the

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3 The juvenile court’s opinion noted that E.S. and M.C.K. “attend[ed] the same

school for half of each school day[.]” Juvenile Court Opinion, 5/8/2024, at 2.

4 M.C.K. is now “residing with family members.” Juvenile Court Opinion,

5/8/2024, at 11.

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controversy will suffer some detriment due to the decision of the trial court.”

Rivera v. Pennsylvania Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super.

2003) (citation omitted). M.C.K. alludes to the first exception to mootness,

arguing that this issue is “impactful to the community” at large. M.C.K.’s Brief

at 14.

We decline to apply an exception here, as M.C.K.’s arguments are all

fact-specific and do not address the legal issues. Although he briefly raises

due process concerns attendant to the Juvenile Act authorizing a probation

officer to place a juvenile in a shelter on their own initiative, M.C.K. does not

develop an argument that the statute is unconstitutional. His arguments

essentially claim that the juvenile court abused its discretion in continuing the

shelter placement. See M.C.K.’s Brief at 13 (arguing that M.C.K. attended

school with E.S. for months following the allegations and before the petition;

M.C.K. had no disciplinary issues at school; M.C.K. remained at home after

the alleged incidents and was not accused of committing any other acts and

was therefore not a danger to anyone). These claims are all specific to

whether his placement was justified and does not implicate any broader

question of public importance. Cf. Interest of N.E.M., 311 A.2d at 1095

(where a juvenile, who had been released, sought review of his post-

dispositional placement outside of the home pursuant to Pa.R.A.P. 1612,

deeming the issue “one of important public interest, as it asks whether

juveniles have a right to expedited review of placements that take them out

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of their homes and into institutions”). We therefore decline to review the

issue.

Discovery violations

M.C.K.’s second claim alleges that the Commonwealth violated its

discovery obligations by withholding two items: the Pennsylvania Detention

Risk Assessment Instrument (“PaDRAI”) and a youth service assessment

(“YSA”). M.C.K.’s Brief at 14-17. M.C.K. obtained the YSA following the

disposition hearing but not the PaDRAI.

The PaDRAI was cited during one of the shelter review hearings, when

Brenda Beers, the deputy chief of the Probation Department, testified in place

of M.C.K.’s assigned probation officer, Mark Saporito. N.T., 11/14/2023, at 5.

She testified that her department’s recommendation was to continue M.C.K.’s

shelter placement. Id. at 6. On cross-examination, M.C.K.’s counsel asked if

she or her department had considered alternative placements. Id. at 17.

Beers stated, “I would say we determined that going home was not [a]n option

and the other option would be shelter care, and according to the [PaDRAI],

the instrument that we use to determine whether or not detention is

appropriate, it was an automatic detention.” Id.5 However, detention beds

were not available, and, in any event, considering M.C.K.’s age the

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5 This transcript is included in the reproduced record, but not the certified

record. The parties do not dispute that the included transcript is an accurate

representation of the hearing. See Commonwealth v. Brown, 52 A.3d

1139, 1145 n.4 (Pa. 2012).

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department “felt shelter care was appropriate.” Id. M.C.K. did not ask any

questions about the PaDRAI or otherwise request its disclosure.

As to the YSA, that document was mentioned at the disposition hearing

during Officer Saporito’s testimony. He informed the court that the YSA

yielded an “overall score [of four] which places him in the low risk need

category. He was overridden at a high risk level due to the serious nature of

the offenses.” Id. This “override” apparently meant that notwithstanding the

“low risk” result from the YSA, Officer Saporito disagreed based upon the

offenses he committed.

M.C.K. obtained the YSA after the disposition hearing following a motion

he filed on March 22, 2024, requesting sanctions against the Commonwealth

and an order to produce a copy of the YSA. The motion stated that a subpoena

was served on the Probation Department directing it to provide, inter alia, the

YSA. That office did not produce the YSA, and apparently informed M.C.K.

that it would not. The juvenile court held a hearing and denied the motion for

sanctions. However, the court ordered the Probation Department to provide

M.C.K. a copy of the YSA.

M.C.K. argues that the Commonwealth was required to supply both

items pursuant to his discovery request, filed on November 8, 2023, which

requested “any evidence favorable to the accused which is material to guilt or

to punishment,” including “medical records, results or reports of scientific

tests, expert opinions, and written or recorded reports of ... physical or mental

examinations of the defendant[.]” Motion for Discovery, 11/8/2024, at

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unnumbered 1. The quoted materials are within the mandatory disclosure

provisions. See Pa.R.J.C.P. 340(B)(1), (4). Following our review of the record

and relevant law, we deem both contentions waived.

Beginning with the PaDRAI, the only mention of that document was

during Beers’ testimony, where she indicated the PaDRAI is a tool used to

determine whether a juvenile should be detained. In context, her testimony

indicates that the PaDRAI recommends a disposition based on a variety of

factors. Given its purpose, the PaDRAI does not qualify as discoverable under

Pa.R.J.C.P. 340(B)(1), which requires disclosure of “evidence favorable to the

juvenile that is material either to adjudication or to disposition, and is within

the possession or control of the attorney for the Commonwealth.” The only

other discernible basis for disclosure cited by M.C.K. is pursuant to Rule

340(B)(4), which applies to “any results or reports of scientific tests, expert

opinions, and written or recorded reports of polygraph examinations or other

physical or mental examinations of the juvenile that are within the possession

or control of the attorney for the Commonwealth[.]” Pa.R.J.C.P. 340(B)(4).

It may be that the PaDRAI informed Beers’ opinion, but that document is not

itself a “result or report” of anything.

Rule 340 further instructs the parties to “make a good faith effort” to

resolve discovery disputes before filing “an appropriate motion to the court.”

Pa.R.J.C.P. 340(A). Thus, in this regard, reviewing M.C.K.’s claim that the

PaDRAI would have been helpful is impossible on the current record because

the “PaDRAI has not been provided” to him. M.C.K.’s Brief at 16. This is

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because he failed to request the PaDRAI at any time, even though he knew of

its existence before the adjudication hearing. He also failed to make any effort

to resolve the dispute, nor did he file a motion to compel the Commonwealth

to produce the PaDRAI, as the subpoena and motion to compel filed referenced

only the YSA. To the extent this could be viewed as a discovery violation, the

Rules of Juvenile Court Procedure grant the juvenile court initial discretion to

determine the applicable remedy, Pa.R.J.C.P. 340(E); M.C.K.’s

aforementioned failures to seek the material prevented the court from doing

so. For all these reasons, any claim regarding the PaDRAI is waived.

Turning to the YSA, we deem the claim waived for similar reasons.

Unlike the PaDRAI, M.C.K. did obtain the YSA. However, despite possessing

the document, M.C.K. fails to discuss what it says and how the failure to

disclose it sooner prejudiced him. “To succeed on a Brady [v. Maryland, 373

U.S. 83 (1963)] claim, the defendant must show: (1) evidence was

suppressed by the prosecution; (2) the evidence, whether exculpatory or

impeaching, was favorable to the defendant; and (3) prejudice resulted.”

Commonwealth v. Cousar, 154 A.3d 287, 301 (Pa. 2017) (citations

omitted).6 Accepting, arguendo, that the Commonwealth suppressed this

item, M.C.K. fails to argue how the evidence was favorable to him or that he

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6 The Pennsylvania Rules of Criminal Procedure disclosure provision “imposes

greater obligations upon prosecutors than the Brady requirements.

Nevertheless, our cases frequently analyze whether a particular discovery

sanction was justified by analyzing whether the evidence was required to be

disclosed pursuant to Brady.” Commonwealth v. Brown, 200 A.3d 986,

994 (Pa. Super. 2018) (citation omitted). We apply the same analysis here.

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was prejudiced by its omission. He baldly asserts that the “YLS was clearly

favorable to M.C.K. and clearly material to disposition.” M.C.K.’s Brief at 16

(emphases in original). He simply claims, with no elaboration or legal

development, that he is entitled to discharge:

The Commonwealth’s disregard of its statutory and constitutional

discovery obligations was designed to, and did, unfairly inhibit

M.C.K.’s ability to defend against the allegations of criminal

conduct and/or to advocate for an appropriate disposition. In

withholding mandatory discovery materials from the defense, the

Commonwealth violated the Rules of Juvenile Court Procedure and

M.C.K.’s right to due process. Therefore, M.C.K. respectfully

requests that this Honorable Court vacate the adjudication of

delinquency/disposition, and that he be discharged.

M.C.K.’s Brief at 17.

It is not clear why the remedy would be discharge. In any event,

because of M.C.K.’s failure to explain what the YSA says, how it is beneficial

to him, and how its absence prejudiced him, his claim is waived.

Authentication of evidence

In his third claim, M.C.K. argues that the juvenile court abused its

discretion in allowing the Commonwealth to present digital messages sent by

E.S. to M.C.K.’s mother (“Mother”). M.C.K.’s Brief at 17-20. These messages

were introduced during the testimony of E.S., when the Commonwealth

introduced screenshots of messages E.S. sent to Mother through Facebook’s

messaging function. “An appellate court’s standard of review of a trial court’s

evidentiary rulings … is [for an] abuse of discretion. In re N.C., 105 A.3d

1199, 1210 (Pa 2014).

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The presentation and evidentiary rulings on these messages were both

confusing. When the Commonwealth asked to present the exhibit to E.S.,

M.C.K. objected on the basis that the Commonwealth failed to lay a foundation

“that this communication involves [Mother].” N.T., 11/21/2023, at 51. The

Commonwealth elicited evidence from E.S. that she had communicated with

Mother in the past and E.S. indicated that the timeframe for the messages in

question was approximately one month after she and M.C.K. ended their

relationship. Id. at 51-52. The Commonwealth again moved to introduce the

exhibit, and M.C.K. maintained that the exhibit was still not properly

authenticated. Id. at 53. The juvenile court overruled that objection. Id.

The Commonwealth then asked E.S. to discuss a specific exchange. M.C.K

objected, arguing:

Your Honor, I’ll object in that I guess if these are part of a text

message chain or there’s an electronic record of these messages,

that the best evidence rule requires those messages to be here.

Obviously these ones are here and now the Commonwealth is

asking the witness about messages that apparently immediately

preceded these ones and they’re not here.

Id. at 53-54.

Briefly, the “best evidence” rule addresses the circumstances in which

the proponent of a writing like these messages must introduce the originals.

See Pa.R.E. 1002 (“An original writing ... is required in order to prove its

content unless these rules, other rules prescribed by the Supreme Court, or a

statute provides otherwise.”); Commonwealth v. Green, 162 A.3d 509, 517

(Pa. Super. 2017) (citing Rule 1002 as codifying “the common law ‘best

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evidence rule’”). The common law rule “dated back to the time when copies

were made by hand copying and were therefore subject to inaccuracy,”

Commonwealth v. Talley, 265 A.3d 485, 535 (Pa. 2021) (citation omitted),

and in criminal cases its application is generally required only if the contents

of the item are necessary to prove the elements of an offense. Id. at 533

(concluding that the best evidence rule applied to text messages in

prosecution for stalking and terroristic threats charges as the contents “were

closely related to a controlling issue”).

The writings here were not necessary to prove any element of any of

the charged offenses and the best evidence rule therefore does not apply. In

any event, M.C.K.’s substantive argument before this Court indicates that he

was not raising a best evidence challenge. There was no assertion or even a

concern that E.S. fabricated the screenshots; the authentication argument

was that the Commonwealth could not prove that Mother herself sent the

messages at issue. M.C.K.’s argument was that the exhibits were selective,

as “the Commonwealth is asking the witness about messages that apparently

immediately preceded these ones and they’re not here.” N.T., 11/21/2023,

at 54.

This argument implicates the “rule of completeness.” See Pa.R.E. 106

(“If a party introduces all or part of a writing or recorded statement, an

adverse party may require the introduction, at that time, of any other part –

or any other writing or recorded statement – that in fairness ought to be

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considered at the same time.”). The juvenile court likewise viewed M.C.K.’s

“best evidence” objection as a rule of completeness assertion, as the court

stated on the record: “Okay. [Commonwealth], the messages do seem to

pick up in the middle of a conversation. Do you have all of this purported

conversation?” N.T., 11/21/2023, at 54. The Commonwealth replied, “I don’t

have any further documentation of this conversation in particular,” and asked

permission to have E.S. discuss if she recalled what communications preceded

the ones shown in the exhibit. Id. The juvenile court replied, “All right. You

can do that with some limitations. First of all, what [Mother] may have said

to the juvenile is hearsay, so she can’t testify about that. What she said to

[Mother] she could say.” Id. at 54. The juvenile court then imposed the

additional limitation that “if the testimony is going to be in an earlier text

message they talked about this, then I’m sustaining the best evidence [sic]

objection.”7 Id. at 55.

Additionally, the juvenile court questioned Mother about her

communications with E.S. Mother testified that M.C.K.’s bedroom did not have

a door, id. at 149, and she initially allowed M.C.K. and E.S. to stay in the

bedroom unsupervised. Id. at 150. However, in late December of 2022 or

early January 2023, both families “found out that they had had sex and we

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7 Again, since this ruling references messages preceding the specific

conversations depicted in the exhibit, it appears that the juvenile court

misspoke and instead intended to reference the rule of completeness.

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just decided after that they weren’t allowed to be alone together.” Id. Thus,

from that point on, she or some other family member monitored their

interactions and could see in the bedroom either directly or indirectly from a

mirror in the home. Id. at 151. She testified that she never heard or

suspected any inappropriate behavior or violent acts. Id. at 155. M.C.K.

additionally elicited that E.S. and Mother interacted directly on many

occasions, and E.S. “confided in” Mother. Id. at 156. Mother agreed that E.S.

“describe[d] herself as obsessed” with M.C.K. Id. Following the

Commonwealth’s cross-examination, the juvenile court asked questions,

including about the Commonwealth’s exhibit. The court read the following

text from Mother to E.S.:

I’m sorry for his behaviors. This will not be happening again

because he will be losing everything in his room his phone and all

of his privileges. I’m glad u told me so I can handle it. Can we

keep it between us tho I don’t need him getting in anymore trouble

then what he is already in.”

Id. at 166-67. The court asked, “What were the behaviors that you were

apologizing for?” Mother stated, “[E.S.] said he was aggressive. ... I

apologized because he is my child, if he was being aggressive.” Id. at 167.

The court then asked, “What exactly did [E.S.] say to you about [M.C.K.] being

aggressive?” Id. M.C.K. interjected, saying, “Your Honor ... you sustained a

best evidence [sic] objection to the preceding parts of that exhibit that were

not entered by the Commonwealth.” Id. The court responded, “Yeah, yeah.

I’m going to follow up with a few questions.” Id. The court then asked,

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among other topics, why Mother asked E.S. to “keep it quiet” that M.C.K. was

being aggressive. Id. at 168. Mother replied, “[S]he put on Snapchat pictures

of the supposable [sic] rape, and I meant between her and I, I didn’t want it

on Snapchat, it wasn’t the world’s business, and ... I was still in contact with

her parents and wanted to discuss this with them and the children together.”

Id. at 168.

M.C.K. now claims that the juvenile court erred because his original

authentication claim should have been sustained, and that the court

compounded its error by sua sponte asking Mother about her conversations

with E.S. M.C.K.’s Brief at 19-20.

In its opinion, the juvenile court opines that the messages were properly

authenticated. Juvenile Court Opinion, 5/8/2024, at 20. Next, the court

explains it “questioned [Mother] for clarification” because “the victim testified

that the first person she spoke to about the sexual assaults was [Mother].”

Id. at 21. As to the court disregarding its earlier ruling “that [the messages]

constituted hearsay,” id., the court responds that it “rule[d] that the victim

could not testify regarding the messages from [Mother].” Id.8 Alternatively,

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8 This characterization of the record is confusing. The sua sponte hearsay

ruling during E.S.’s testimony was limited to what “[Mother] may have said to

the juvenile[.]” N.T., 11/21/2024, at 54. While the reference to “juvenile”

was ambiguous, our review of the record reveals that in context, the “juvenile”

was M.C.K. Thus, the juvenile court was prohibiting E.S. from relaying what

Mother said to M.C.K. as relayed to E.S. by Mother. The ruling could not have

been that E.S. could not testify to what Mother said to her, as that would bar

(Footnote Continued Next Page)

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the court notes that “any error … was cured when [Mother] took the stand and

testified to the same messages[.]” Id.

We agree that any error in the introduction of the messages was

harmless beyond a reasonable doubt as Mother admitted that she sent the

messages. In re F.P., 878 A.2d 91, 95 (Pa. Super. 2005) (applying harmless

error doctrine to claim that internet messages were insufficiently

authenticated). To the extent that M.C.K. argues that we cannot rely on this

admission because the juvenile court sua sponte examined Mother, we

conclude any argument regarding the juvenile court’s questioning is waived.

While M.C.K. objected, he did so only on the grounds that the juvenile court

was contradicting its earlier “best evidence” ruling.9 He did not object on the

basis that the juvenile court should not have cross-examined Mother.

Rape Shield law

M.C.K. next argues that the juvenile court committed reversible error

by invoking the Rape Shield Law, 18 Pa.C.S. § 3104, to limit cross-

examination about E.S. previously having a boyfriend. M.C.K.’s Brief at 21-

____________________________________________

all testimony about these conversations. We note that M.C.K. did not raise

any hearsay objection to these communications.

9 We note that M.C.K. not only called Mother as his own witness, he questioned

her about the content of communications between Mother and E.S. N.T.,

11/21/2023, at 156 (“During your communications with [E.S.], did she ever

describe herself as obsessed or obsessive … with [M.C.K.]?”). M.C.K. cannot

now limit his authentication challenge to the subset of messages harmful to

his position.

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22. Although we agree that the court erred, we conclude that the error was

harmless beyond a reasonable doubt.

The record reflects that on cross-examination, M.C.K. asked E.S. how

the two met, and she stated that M.C.K. requested to become her friend

through Snapchat. N.T., 11/21/2023, at 62. M.C.K. followed up by asking,

“Why did you accept the request[?]” and E.S. responded, “Because at that

point I was adding a bunch of people back because I was going through a

breakup.” Id. M.C.K. then rejoined, “So when you told the Children’s

Advocacy Center in your interview that [M.C.K.] was your first actual

boyfriend, that wasn’t true; was it?” Id. The juvenile court sua sponte

curtailed this line of impeachment on the grounds that the “Rape Shield Law

... precludes evidence about a complainant’s prior relationships of any kind.”

Id.

As M.C.K. correctly states, the Rape Shield law applies to sexual

relationships:

Evidence of specific instances of the alleged victim’s past sexual

conduct, past sexual victimization, allegations of past sexual

victimization, opinion evidence of the alleged victim’s past sexual

conduct, and reputation evidence of the alleged victim’s past

sexual conduct shall not be admissible in prosecutions of any

offense listed in subsection (c) except evidence of the alleged

victim’s past sexual conduct with the defendant where consent of

the alleged victim is at issue and such evidence is otherwise

admissible pursuant to the rules of evidence.

18 Pa.C.S. § 3104(a). The statute “is intended to exclude irrelevant and

abusive inquiries regarding prior sexual conduct of sexual assault

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complainants.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super.

2009) (en banc).

The purpose of the question was to establish E.S. was not credible

because her prior statement was inconsistent with her testimony. On its face,

the question has nothing to do with past sexual conduct and, as such, the

Rape Shield law does not apply. The juvenile court thus erred in its

substantive ruling.

However, claims that the juvenile court erroneously limited cross-

examination are subject to harmless error review. See Commonwealth v.

Dowling, 778 A.2d 683, 687 (Pa. Super. 2001). An error is harmless if, inter

alia, the juvenile court, sitting as factfinder, expressly states that the error did

not impact its determination (i.e., it could not have contributed to the verdict).

See Commonwealth v. Bullock, 286 A.3d 1282, 1288 (Pa. Super. 2022).

Here, M.C.K. is not entitled to relief because the juvenile court also expressly

found that the excluded testimony was cumulative of other instances of

inconsistencies between her trial testimony and statements she made at the

forensic interview. See Juvenile Court Opinion, 5/8/2024, at 22 (“If it is

asserted that the questioning was proper impeachment, as the victim may

have indicated in her … interview that [M.C.K.] was her first boyfriend, it is

this [c]ourt’s opinion that the testimony was cumulative of the other testimony

elicited ... regarding purported inconsistencies in the victim’s interview … and

the testimony during the hearing.”). The juvenile court found E.S. to be

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credible despite these inconsistencies. It is the role of the juvenile court, as

factfinder, to resolve questions of credibility of witnesses, and this Court may

not disturb these credibility determinations unless they have no support in the

record. Commonwealth v. Keaton, 82 A.3d 419, 425 (Pa. 2013) (citation

omitted); see also Commonwealth v. Askins, 761 A.2d 601, 603 (Pa.

Super. 2000) (“[W]here the court has heard the case de novo, is limited to

whether the trial court committed an error of law and whether the findings of

the trial court are supported by competent evidence”). As the juvenile court

deemed E.S. credible notwithstanding the discrepancy, the error in excluding

the testimony that E.S. previously had a boyfriend was harmless beyond a

reasonable doubt.

Credibility assessments

In M.C.K.’s fifth claim he asserts that the juvenile court was biased in

favor of sexual assault victims. M.C.K.’s Brief at 23-26. He contends that

“[t]he following facts weigh against the credibility of the purported victim,”

citing four facts which, in M.C.K.’s view, establish that E.S. was not credible:

(1) E.S. did not tell anyone about the rapes until after she and M.C.K. stopped

dating; (2) she repeatedly returned to M.C.K.’s residence after the rapes

began; (3) she continued to contact M.C.K. even after disclosing the rapes;

and (4) she attempted to interfere with M.C.K.’s relationship with another girl.

Id. at 23-24. He also points to three “demonstrable lies,” which are conflicts

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between her testimony and prior statements to the forensic interviewer. Id.

at 25.

M.C.K. argues that the juvenile court erred by finding E.S. credible

“[d]espite the objective, almost-palpable incredibility of the purported

victim[.]” Id. at 25. He claims that the court’s decision “is, perhaps, better

understood” by examining the following comments by the juvenile court:

By way of general comment, as an attorney, as solicitor for

Children & Youth services, as somebody who did pro bono work

for The Safe Place and as a judge for the last 14 years of my

career, sexual assault does not make sense. Reaction to sexual

assault does not make sense. All the experts I’ve ever heard is

from the witness stand regarding how victims react, what they do

during, after is counterintuitive. Victims uniformly don’t make an

immediate report. They don’t. There’s a number of reasons for

that. Victims will sometimes stay with their perpetrator.

Counterintuitive, it happens. I’m talking about adults, juveniles.

From the outside it doesn’t make sense.

Id. (quoting N.T., 11/21/2023, at 286).

M.C.K. then defines the term “bias” and argues that because of the

judge’s background, he “was clearly prepared to excuse the incredibility of the

purported victim before the proceeding even commenced.” Id. at 26. Thus,

M.C.K. argues that the juvenile court’s “failure to properly weigh the credibility

of the purported victim in this matter was the result of bias, prejudice, and/or

partiality[.]” Id.

The court’s failure to rule in favor of M.C.K. does not establish that the

court failed to assess E.S.’s credibility or was biased in her favor. M.C.K. is

simply asking this Court to reweigh the credibility of E.S., which we cannot

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do. Commonwealth v. Cramer, 195 A.3d 594, 601 (Pa. Super. 2018)

(“Appellant essentially asks us to reassess the credibility of the Victim and

reweigh the evidence presented at trial. We cannot do so.”). Furthermore,

the juvenile court cogently explained the comments it made and the context

in which it made them:

The [c]ourt would like to specifically address assertions made in

the concise statement filed by [M.C.K.] that the [c]ourt made

statements when rendering its opinion and determination, that

implied “all purported victims are always credible regardless of

evidence to the contrary.” This [c]ourt stated nothing of the kind.

The [c]ourt stated that it believed the testimony of the victim in

this case and gave the detailed reasons why. Any general

comments regarding victims of sexual assaults, and their behavior

during and after the assaults, were intended to address closing

comments made by [M.C.K.]’s counsel such as “her behavior

afterwards was not consistent with the behavior that you would

expect of a victim of sexual assault” and “that’s not behavior that

is consistent ... with someone who has been victimized in a

sexually violent manner...”. The [c]ourt’s comments were

intended to convey why the [c]ourt, as fact finder, believed the

testimony of the victim despite the purported credibility issues

raised by [M.C.K.].

Juvenile Court Opinion, 5/8/2024, at 9.

M.C.K. alleges that the juvenile court erred by relying on these

considerations because “no psychiatric expert – pediatric or otherwise –

testified to this purported victim’s state of mind.” M.C.K.’s Brief at 26

(emphasis in original). We take no issue with the juvenile court discussing

these concepts. As our Supreme Court acknowledges, “[w]hile some

laypersons may be aware of common behaviors and responses to sexual

abuse, it would be a generalization to assume that the average juror is privy

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to the complex psychological dynamics surrounding sexual abuse.”

Commonwealth v. Jones, 240 A.3d 881, 891 (Pa. 2020). The Jones

decision authorized courts to admit expert evidence regarding victim

responses and behaviors on a case-by-case basis. The juvenile court’s

statements are simply an acknowledgement that the court is aware of the

“complex psychological dynamics surrounding sexual abuse.” See id. at 891.

Thus, M.C.K.’s claim in this regard is without merit.

Sufficiency of evidence – lack of consent

The sixth issue presented avers that the evidence was insufficient to

support a finding that he committed the acts of delinquency for which he was

adjudicated. M.C.K.’s Brief at 27-30. Our standard of review is well

established:

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 Int. of J.G., 145 A.3d 1179, 1188 (Pa. Super. 2016) (citation omitted).

The juvenile court is “free to believe some, all, or none of the evidence

presented.” Id. (citation omitted).

M.C.K. does not specifically address the elements of any the offenses;

instead, he argues that E.S. consented to the sexual conduct. Id. at 28.

M.C.K. maintains that E.S.’s “repeated, voluntary acts of returning to the

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home of M.C.K. and moving to his bedroom immediately upon arrival ...

strongly suggests that the parties’ sexual contact was consensual.” Id. In

support, M.C.K. cites a message sent from E.S. to M.C.K., wherein E.S. stated:

Sometimes when I say no to things or tell you not to do something

like to me or for me it's only because I actually want you to do it

or but I want you to push and do it anyway maybe without telling

me. It makes me happy. But you’ve never done it and it makes

me a little upset cuz a lot of the time I really want u to do it.

Id. at 29 (quoting N.T., 11/21/2023, at 72).

What M.C.K. fails to mention is that E.S. testified that this message had

nothing to do with their consensual non-consent sex. “[T]his text is not – it’s

about buying me flowers and getting me gifts.” N.T., 11/21/2023, at 74.

M.C.K. does not point to anything in the record definitively showing that the

text message was about the instances of anal intercourse at issue here.

Moreover, the record reflects that E.S. specifically testified that she did

not consent to the sexual acts in question, told M.C.K. “no,” and repeated the

safe word on each occasion, which M.C.K. ignored. “[T]he uncorroborated

testimony of the complaining witness is sufficient to convict a defendant of

sexual offenses.” Cramer, 195 A.3d at 602. The evidence was therefore

sufficient to find that M.C.K. committed the acts for which he was adjudicated

delinquent.

Mistake of fact defense

M.C.K.’s seventh issue claims that the juvenile court erred by not

crediting his “defense” that he reasonably but mistakenly believed that E.S.

consented to anal sex. See M.C.K.’s Brief at 30. M.C.K. recognizes the

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binding case law rejecting a mistake of fact defense for sexual assault cases.

See Commonwealth v. Williams, 439 A.2d 765, 769 (Pa. Super. 1982);

Commonwealth v. Fischer, 721 A.2d 1111, 1118 (Pa. Super. 1998)

(applying Williams). He nonetheless suggests that these cases can be

distinguished “under circumstances like those present here,” presumably

referring to consensual non-consent sex. M.C.K.’s Brief at 32.

To the extent that this “consensual non-consent sex” fact pattern serves

as a valid basis to distinguish the foregoing case law, we decline to do so as

he waived any such claim. Pointedly, M.C.K. does not cite to any place in the

record where he raised this argument to the juvenile court during the

proceedings. See Pa.R.A.P. 302(a). To the contrary, M.C.K. argued before

the juvenile court that the alleged sexual contact did not occur, as it ended

after E.S.’s parents found a condom, at which point M.C.K.’s family began

monitoring their visits.

She told you, Your Honor, that -- she told you that it was

only after that December/January incident with the condom that

anything unconsensual occurred. That was the -- that was the

breaking point. It’s after that that anything allegedly

unconsensual occurred, and there’s no evidence, no suggestion

even, Your Honor, that anything unconsensual happened before

that point.

Your Honor heard the testimony of the parents and

grandparents and the alleged victim herself described that

somebody from that point forward was always around, there was

always an adult present, whether it was at her house or her being

her parents I suppose or at [M.C.K.’s] residence.

[M.C.K.]’s bedroom doesn't have a door on it, Judge. You

can see into the bedroom from the kitchen which is seven feet

away. You can see into the room from the living room where she's

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maybe 10, 15 feet away. You can see into the bedroom from

other bedrooms in the house. And again, there’s always

somebody there. Nobody witnessed any of this. Nobody heard

anything suggestive of impropriety, sexual or otherwise, or illegal

activity.

N.T., 11/21/2023, at 221.

It was M.C.K.’s position that E.S. did not credibly testify about the sex

acts occurring in M.C.K.’s bedroom. This aligns with the theory of the case

M.C.K. presented before the trial court, as the majority of the witnesses he

called to testify were adults with supervisory responsibilities in his home, all

of whom stated that E.S. and M.C.K. were never alone in the home and that

no sexual activity between them occurred there after the discovery of the

condom. See id. at 148-266. The argument that M.C.K. mistakenly believed

that E.S. consented to anal intercourse requires a concession that those sex

acts occurred. Moreover, as M.C.K. did not testify, there is no record support

for the juvenile court to conclude that he subjectively believed that E.S.

consented to anal intercourse. This claim has therefore been waived for failing

to pursue it at the juvenile court level.

Sufficiency of evidence - forcible compulsion

M.C.K.’s eighth and final claim is that the Commonwealth failed to

establish that he forcibly compelled E.S. to engage in anal sex, and thus

should not have been adjudicated delinquent for the offenses of rape by

forcible compulsion, involuntary deviate sexual intercourse by forcible

compulsion, aggravated indecent assault by forcible compulsion, and indecent

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assault by forcible compulsion, all of which contain the element of “forcible

compulsion.” Forcible compulsion is defined as “[c]ompulsion by use of

physical, intellectual, moral, emotional or psychological force, either express

or implied.” 18 Pa.C.S. § 3101. M.C.K. cites Commonwealth v. Berkowitz,

641 A.2d 1161 (Pa. 1994), wherein the Supreme Court found that the

evidence was insufficient to establish the actor used force. He argues that the

facts are similar and compels the same result in the case at bar. M.C.K.’s

Brief at 35.

In Berkowitz, the victim and Berkowitz were both college students and

the victim voluntarily entered the defendant’s dorm room while looking for a

friend. Berkowitz, 641 A.2d at 1163. She stayed after realizing the friend

was not there and started conversing with Berkowitz; at some point, Berkowitz

lifted her bra and shirt and began undoing her pants. Id. The victim rejected

his attempt to put his penis in her mouth, following which Berkowitz locked

the door. Berkowitz then “put [her] down on the bed.” Id. at 1164. She

described that physical act as “kind of like a push but not[.]” Id. The Court

determined that this was insufficient to establish physical compulsion. Id. at

1165.10

____________________________________________

10 At the time of the Berkowitz decision, section 3101 did not define forcible

compulsion. “Although the rape and IDSI laws have always required the

element of ‘forcible compulsion,’ that term was not initially defined.”

Commonwealth v. Fischer, 721 A.2d 1111, 1115 (Pa. Super. 1998). Thus,

the Berkowitz Court did not address the fact that Berkowitz locked the door

as a potential basis for finding forcible compulsion. The General Assembly

responded to Berkowitz by amending section 3101 to add a definition that

went beyond physical force.

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We disagree that Berkowitz is controlling here. Unlike in Berkowitz,

which involved only a “slight push” onto the bed and then the defendant’s

body weight on the victim, E.S. here testified that M.C.K. would apply force to

her body when she attempted to get up from the bed during the assaults.

N.T., 11/21/2023, at 42. E.S. stated that the force applied by M.C.K. would

place one hand on her shoulder, applying enough force to prevent her from

moving. Id. at 43 (“Q. Was he pushing and holding hard enough that you

could not get away? A. Yes.”). This is sufficient to establish forcible

compulsion. See Commonwealth v. Farmer, 758 A.2d 173, 181 (Pa. Super.

2000) (distinguishing Berkowitz; Farmer “pushed [the victim] to his car

when she tried to push him away” and “held her shoulders down with both

hands while he had sexual intercourse with her”). Therefore, M.C.K.’s final

claim is without merit.

Order affirmed.

2/10/2025

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