In the Interest of: N.C., a minor, Appeal of N.C.

J-A16039-17

2017 PA Super 299

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

: PENNSYLVANIA

:

:

APPEAL OF: N.C. : No. 1634 WDA 2016

Appeal from the Dispositional Order September 7, 2016

in the Court of Common Pleas of Clearfield County

Juvenile Division at No(s): CP-17-JV-0000071-2012

CP-17-JV-0000036-2016

BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER,* J.

OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 18, 2017

N.C. (Appellant) appeals from the dispositional order1 entered on

September 7, 2016, following his adjudication of delinquency for indecent

assault person less than 13 years of age, 18 Pa.C.S. § 3126 (indecent

1

Appellant purports to appeal from the September 26, 2016 order

denying his post-dispositional motion. However, “[i]n juvenile proceedings,

the final order from which a direct appeal may be taken is the order of

disposition, entered after the juvenile is adjudicated delinquent.”

Commonwealth v. S.F., 912 A.2d 887, 889 (Pa. Super. 2006)

(unnecessary capitalization omitted). We have amended the caption

accordingly.

Also, although the caption of the September 26, 2016 order indicates

that the case is docketed in the criminal division of the Court of Common

Pleas of Clearfield County, the August 18, 2016 adjudicatory/dispositional

order indicates the case is docketed in the juvenile division. We have

amended the caption accordingly.

Finally, the August 18, 2016 adjudicatory/dispositional order is

docketed at docket number CP-17-JV-0000036-2016, which was later

consolidated with docket number CP-17-JV-0000071-2012. We have

amended the caption to add docket number 36-2016.

*Retired Senior Judge assigned to the Superior Court.

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assault). We vacate the dispositional order and reverse the adjudication of

delinquency.

In February 2012, a petition was filed alleging that then 14-year-old

Appellant was a delinquent child because Appellant touched a three-year-old

in the genital area, which constituted aggravated indecent assault (a felony)

and indecent assault (a misdemeanor). Deliquency Petition, 2/21/2012, at

1-2. In May 2012, after a contested hearing, the juvenile court in Jefferson

County determined that Appellant had engaged in a delinquent act

constituting aggravated indecent assault. Order, 5/11/2012. Because

Appellant resided in Clearfield County, the case was transferred to the

juvenile court in Clearfield County for adjudication and disposition. Id. In

July 2012, the juvenile court in Clearfield County adjudicated Appellant

delinquent of one count of aggravated indecent assault, and ordered

Appellant to be placed on probation for one year, which was to run

consecutively to a probation violation disposition imposed in a separate

matter. Order, 7/19/2012.

Appellant appealed the disposition to this Court, arguing that the

juvenile court erred by admitting recorded statements by the child-victim

into evidence during the adjudicatory hearing. This Court agreed, holding

that admission of the statements violated Appellant’s right to confrontation

provided by the Sixth Amendment to the United States Constitution. In re

N.C., 74 A.3d 271 (Pa. Super. 2013). We vacated Appellant’s disposition

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and remanded for a new adjudication, and our holding was later affirmed on

appeal. In re N.C., 103 A.3d 1199 (Pa. 2014).

As part of the disposition of Appellant’s probation violation, which

related to Appellant’s engaging in harassment by communication stemming

from “sexting” girls at his school, the juvenile court placed Appellant at

Appalachian Youth Services (AYS) in July 2012.2 Juvenile Court Opinion,

11/28/2016, at 1. While his appeal was pending, Appellant received sexual

offender treatment at AYS. Id. After Appellant was discharged from AYS to

the care of his mother, the juvenile court ordered Appellant to attend the

sexual offender program at Project Point of Light, which he completed on

July 9, 2014. Id. at 1-2. Thus, by the time the case was remanded,

Appellant had successfully completed two court-ordered sexual offender

treatment programs. He also completed his term of probation without

incident, graduated from high school, and was a rising university freshman.

N.T., 6/18/2016, at 4, 9.

After remand, Appellant, then age 18, tendered an admission to

indecent assault, and the juvenile court in Jefferson County accepted his

admission and transferred the case to the juvenile court in Clearfield County

for adjudication and disposition. Adjudicatory Hearing Order, 2/24/2016, at

2

There is a typographical error in the juvenile court’s opinion; Appellant’s

probation revocation and placement at AYS occurred in July 2012, not 2013.

See Exhibit A to Appellant’s Omnibus Pre-trial Motion (attaching revocation

of probation order dated July 13, 2012).

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1. After conducting a hearing on August 18, 2016, the juvenile court

determined that Appellant was in need of treatment, supervision, or

rehabilitation, and adjudicated Appellant delinquent of indecent assault.

Adjudicatory/Dispositional Hearing Order, 9/7/2016, at 1-2. The juvenile

court rendered its disposition at the same time, placing Appellant on

probation for one year less one day and ordering Appellant to complete a

psychosexual evaluation at Project Point of Light, to pay court costs, and to

have no contact with the victim. Id. at 2.

After filing a post-dispositional motion, which the juvenile court

denied, Appellant timely filed a notice of appeal. Both Appellant and the

juvenile court complied with Pa.R.A.P. 1925. On appeal, Appellant asks this

Court to decide whether the juvenile court abused its discretion in

adjudicating Appellant delinquent, arguing there was a lack of evidentiary

support to sustain the finding that Appellant was in need of treatment,

supervision, or rehabilitation. Appellant’s Brief at 5. Appellant also

questions whether the juvenile court subjected Appellant to unconstitutional

punishment in violation of the double jeopardy and due process clauses of

the United States and Pennsylvania Constitutions by imposing additional and

extended punishment upon him. Id.

Before we begin our analysis of Appellant’s first issue, we must

consider whether it is moot. At oral argument, counsel for Appellant

informed the Court that Appellant underwent his court-ordered psychosexual

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evaluation and was due to be released from probation in August 2017.

Nevertheless, Appellant argued that his first issue is not moot because he is

contesting his adjudication, not his disposition, and if this Court should rule

that the juvenile court erred by finding him to be in need of treatment, the

Court is able to enter an order that has legal effect because the appropriate

remedy would be to reverse the adjudication order.

We consider the following in determining whether a case is moot.

As a general rule, an actual case or controversy must exist at all

stages of the judicial process, or a case will be dismissed as

moot. An issue can become moot during the pendency of an

appeal due to an intervening change in the facts of the case or

due to an intervening change in the applicable law. … An issue

before a court is moot if in ruling upon the issue the court cannot

enter an order that has any legal force or effect.

In re R.D., 44 A.3d 657, 679-80 (Pa. Super. 2012) (citations omitted).

We agree with Appellant that his first issue is not moot for the reasons

he articulated. See In Interest of Kilianek, 378 A.2d 995, 995 (Pa.

Super. 1977) (holding that juvenile’s challenge to her adjudication, which

claimed that juvenile court improperly adjudicated her delinquent despite

not meeting the legal standard for delinquency, was not rendered moot upon

her release from out-of-home placement); In Interest of DelSignore, 375

A.2d 803, 807 (Pa. Super. 1977) (deciding juvenile’s challenge regarding

sufficiency of evidence to support adjudication, but holding objection to

placement was rendered moot upon her release from the placement); R.D.,

44 A.3d at 679-80 (deciding issues relating to adjudication, but holding that

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juvenile’s challenge to his disposition was rendered moot upon his release

from the delinquency placement).

Therefore, we turn our attention to our standard of review of

dispositional orders following delinquency adjudications in juvenile

proceedings. The Juvenile Act grants broad discretion to juvenile courts, and

we will not disturb the lower court’s disposition absent a manifest abuse of

discretion. In re C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014); In the

Interest of J.D., 798 A.2d 210, 213 (Pa. Super. 2002).

Before entering an adjudication of delinquency, “the Juvenile Act

requires a juvenile court to find that a child has committed a delinquent act

and that the child is in need of treatment, supervision, or rehabilitation.”

Commonwealth v. M.W., 39 A.3d 958, 964 (Pa. 2012) (emphasis in

original). “A determination that a child has committed a delinquent act does

not, on its own, warrant an adjudication of delinquency.” Id. at 966. See

also In re T.L.B., 127 A.3d 813 (Pa. Super. 2015) (holding that the juvenile

court did not abuse its discretion in finding the appellee was not in need of

treatment, rehabilitation, or supervision when, by the time of the deferred

adjudication hearing, appellee completed the sexual offender portion of his

psychological treatment ordered as part of his dependency matter and had

not acted out in sexualized behavior in more than a year).

The Juvenile Act and Rules of Juvenile Procedure contemplate the

following process. Once the juvenile court determines the Commonwealth

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has proved beyond a reasonable doubt that the child committed the acts

alleged, the court must enter that finding on the record. Id. at 965 (citing

42 Pa.C.S. § 6341(b)). If the juvenile court makes such a finding, next,

either immediately or at a hearing held within 20 days, the court must “hear

evidence as to whether the child is in need of treatment, supervision[,] or

rehabilitation.”3 Id. (emphasis added). “If the court finds that the child is

not in need of treatment, supervision[,] or rehabilitation[,] it shall dismiss

the proceeding and discharge the child from any detention or other

restriction theretofore ordered.” Id. See also Pa.R.J.C.P. 409(1). “If the

court determines the juvenile is in need of treatment, supervision, or

rehabilitation, the court shall enter an order adjudicating the juvenile

delinquent and proceed in determining a proper disposition under Rule 512.”

Pa.R.J.C.P. 409(2)(a).

Our first task is to determine the burden of proof, as the parties

dispute which side bears the burden and what the burden is. Appellant

argues that the Commonwealth had the burden of proving beyond a

reasonable doubt both required prongs for adjudication, i.e., that Appellant

committed a delinquent act and was in need of treatment, supervision, or

3

The Juvenile Act further specifies that “[i]n the absence of evidence to the

contrary, evidence of the commission of acts which constitute a felony shall

be sufficient to sustain a finding that the child is in need of treatment,

supervision[,] or rehabilitation.” 42 Pa.C.S. § 6341(b). This provision does

not apply to Appellant because the felonies charged in this case were nolle

prossed at the time Appellant tendered his admission to the misdemeanor of

indecent assault.

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rehabilitation. Appellant’s Brief at 13. The Commonwealth disagrees,

arguing that the Juvenile Act only requires proof beyond a reasonable doubt

for the first adjudicatory prong regarding the commission of a delinquent

act. Commonwealth’s Brief at 9-12. The Commonwealth does not indicate

what level of proof is required to prove that a juvenile is in need of

treatment, supervision, or rehabilitation. Nor does it argue directly which

party had the burden, although it seems to suggest implicitly that Appellant

did when it argues that the juvenile court was justified in finding that

Appellant was in need of further treatment due to the lack of evidence in the

record demonstrating that Appellant’s prior treatment focused on his later-

admitted delinquent act. Id. at 15.

Our Supreme Court has noted that “the Juvenile Act is not a model of

clarity.” M.W., 39 A.3d at 964. Indeed, the Juvenile Act does not specify

explicitly who has the burden of demonstrating that the juvenile is or is not

in need of treatment, supervision, or rehabilitation. However, in this case,

the Commonwealth is the petitioner, and filed a petition alleging that

Appellant is a “delinquent child” as defined in the Juvenile Act. Petition,

2/21/2012, at 1. The Juvenile Act defines a delinquent child as “[a] child ten

years of age or older whom the court has found to have committed a

delinquent act and is in need of treatment, supervision[,] or rehabilitation.”

42 Pa.C.S. § 6302. Therefore, it stands to reason that the Commonwealth

has the burden of proving both prongs.

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While as a matter of strategy, a juvenile certainly may attempt to

rebut the Commonwealth’s allegation that he or she is in need of treatment,

supervision, or rehabilitation, nothing in the Juvenile Act or in cases

construing the act suggests that a juvenile carries the burden of disproving

that he or she is in need of treatment, supervision, or rehabilitation.

Therefore, the burden remained with the Commonwealth to prove that

Appellant was in need of treatment, supervision, or rehabilitation.

Having settled that it is the Commonwealth that had the burden of

proof, we observe that the Act is silent as to the standard of proof required

for establishing that the juvenile is in need of treatment, supervision, or

rehabilitation. Id. (stating merely that the juvenile court must “hear

evidence” as to the need for treatment, supervision, or rehabilitation). This

is in contrast to the Act’s mandate regarding the juvenile’s commission of a

delinquent act. Id. (“If the court finds on proof beyond a reasonable doubt

that the child committed the acts by reason of which he is alleged to be

delinquent it shall enter such finding on the record….”).

Both parties exclusively cite to M.W. to support their respective

positions, but other than restating the statutory language, our Supreme

Court in M.W. did not address the standard of proof required by the Juvenile

Act. See M.W., 39 A.3d at 965. The United States Supreme Court has

addressed the standard of proof required in the adjudicatory phase of

juvenile delinquency proceedings, holding that “the Due Process Clause

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protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which

he [or she] is charged,” and then extending this holding to the adjudicatory

phase of a juvenile delinquency proceeding. In re Winship, 397 U.S. 358,

364 (1970). However, this holding is not dispositive of what standard of

proof is required to prove that a juvenile is in need of treatment,

supervision, or rehabilitation, as the statute at issue in Winship did not

have a two-pronged approach to adjudication and only required the state of

New York to prove that the juvenile committed a delinquent act. Id.

(“Section 712 of the New York Family Court Act defines a juvenile delinquent

as ‘a person over seven and less than sixteen years of age who does any act

which, if done by an adult, would constitute a crime.’”).

Our Supreme Court recently observed that “the standard of proof

serves to allocate the risk of error between the litigants and to indicate the

relative importance attached to the ultimate decision.” Commonwealth v.

Batts, 163 A.3d 410, 453 (Pa. 2017) (citing Addington v. Texas, 441 U.S.

418, 423 (1979)). “The function of a standard of proof … is to instruct the

factfinder concerning the degree of confidence our society thinks he should

have in the correctness of factual conclusions for a particular type of

adjudication.” Id. (citations omitted). Proof beyond a reasonable doubt

“impresses on the trier of fact the necessity of reaching a subjective state of

certitude of the facts at issue” and is normally reserved for criminal matters

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where a person’s right to liberty is at stake. Id. at 453-54 (citing Winship,

397 U.S. at 364). “The stringency of the beyond a reasonable doubt

standard bespeaks the weight and gravity of the private interest affected,

society’s interest in avoiding erroneous convictions, and a judgment that

those interests together require that society impose almost the entire risk of

error upon itself.” Id. (citations and quotation marks omitted).

To determine the interests at stake, we turn to the purpose of the

Juvenile Act for assistance. “Consistent with the protection of the public

interest,” the purpose of the Act is “to provide for children committing

delinquent acts programs of supervision, care and rehabilitation which

provide balanced attention to the protection of the community, the

imposition of accountability for offenses committed and the development of

competencies to enable children to become responsible and productive

members of the community.” 42 Pa.C.S. § 6301. Once a child is

adjudicated delinquent, “[t]he Juvenile Act gives wide latitude to the juvenile

court in fashioning an order of disposition” to achieve these objectives.

Commonwealth v. B.H., 138 A.3d 15, 21 (Pa. Super. 2016); T.L.B., 127

A.3d at 818.

Our legislature could have opted to provide that a child may be

adjudicated delinquent when the Commonwealth proves that the child

committed a delinquent act, thereby invoking the juvenile court’s broad

dispositional powers to protect the public interest, hold the child

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accountable, and assist the child in developing competencies to become a

responsible and productive member of society. It did not. Instead, the

legislature determined that before the juvenile court may use its

dispositional powers, the Commonwealth must also prove that the child is in

need of treatment, supervision, or rehabilitation. 42 Pa.C.S. § 6341(b);

M.W., 39 A.3d at 966. This two-pronged approach suggests that the

legislature intended to limit the instances when the state steps in to govern

a juvenile’s behavior and label the juvenile as a delinquent child. There may

be some instances where a juvenile’s delinquent behavior is better

addressed by the authority of a parent, guardian, or school as opposed to

the coercive authority of a juvenile court judge who does not otherwise know

the juvenile. Once a child is adjudicated delinquent, the juvenile court may

“place the child ‘on probation under supervision of the probation officer of

the court ... under conditions and limitations the court prescribes,’ … commit

the child to an institution or other facility for delinquent children, or … order

payment of fines, costs, fees and restitution.” B.H. (quoting 42 Pa.C.S. §

6352). Thus, involvement with the juvenile delinquency system has

significant consequences for a juvenile, including the potential loss of liberty.

Because the legislature opted to subject a juvenile to those consequences

only if he or she is in of need treatment, supervision, or rehabilitation, we

hold that in addition to proving beyond a reasonable doubt that a juvenile

engaged in a delinquent act, the Commonwealth also must prove beyond a

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reasonable doubt that the juvenile is in need of treatment, supervision, or

rehabilitation.4

We turn to the substance of Appellant’s argument. Appellant points

out that he already successfully completed a commitment to AYS, sexual

offender treatment at Project Point of Light, and a term of juvenile probation

supervision, all of which was undertaken to address the felony crime of

aggravated indecent assault. Appellant’s Brief at 14. Appellant argues that

the juvenile court impermissibly relied upon argument from the district

attorney, which does not constitute evidence, and there is insufficient

evidence otherwise to support the juvenile court’s order. Id. at 14-15.

In its Rule 1925(a) opinion, the juvenile court explained that it was

persuaded that Appellant needed further treatment because there was no

evidence from AYS or Project Point of Light demonstrating that Appellant had

admitted to engaging in any form of indecent assault prior to or during his

treatment. Juvenile Court Opinion, 11/28/2016, at 4. The juvenile court

opined that Appellant’s failure to admit wrongdoing indicated that Appellant’s

rehabilitative needs were not met through his prior treatment. Id. The

juvenile court stated that it may consider the protection of the public

interest, and concluded that further treatment will not only serve Appellant’s

4

Even if the Juvenile Act required a less stringent standard of proof, based

upon the lack of evidentiary support that we discuss infra, we would still

determine that the Commonwealth failed to meet its burden.

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rehabilitative needs but also protect the public by having Appellant address

behaviors that are “a possible danger to society.”5 Id. at 5-6.

We agree with Appellant that the juvenile court’s findings and

conclusions are not supported by the record. A review of the transcript

reveals that the adjudication and disposition hearing consisted primarily of

argument by counsel from both sides,6 and the Commonwealth did not seek

to introduce evidence on its own accord. The juvenile court sua sponte and

without objection entered documents it had received from the Project Point

of Light into the record, including, inter alia, a polygraph examination dated

February 9, 2012, indicating that Appellant denied the allegations against

5

In T.L.B., this Court acknowledged that the Juvenile Act requires the

juvenile court to consider the protection of the public, and to devise a

sentence best suited to the child’s treatment, supervision, rehabilitation, and

welfare, under the individual circumstances of each case. T.L.B., 127 A.3d

at 818. Nevertheless, this Court held that protection of the public may not

be considered until the dispositional phase after the court has adjudicated

the juvenile delinquent, as “M.W. clearly delineated only two factors for the

initial finding of delinquency: the juvenile’s commission of the acts and his

need for treatment, supervision, or rehabilitation.” Id. (citing M.W., 39

A.3d at 959, 964). However, Appellant did not raise this argument, and

therefore, he has waived any challenge to the juvenile court’s error.

6

The hearing began with argument from the parties regarding a defense

motion. N.T., 8/18/2016, at 3. Although the motion is not identified in the

record, presumably the court was referring to Appellant’s pre-adjudication

omnibus motion, which requested, inter alia, that the juvenile court dismiss

the delinquency petition based upon Appellant’s prior successful completion

of sexual offender treatment, out-of-home placement, and probation.

Omnibus Motion for Relief, 11/25/2015, at ¶¶ 4-13. Appellant originally

presented the motion to the juvenile court in Jefferson County, which ruled

that the motion was not ripe and deferred a ruling on the merits for the

juvenile court in Clearfield County to address if necessary. Order,

12/4/2015, at 1.

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him, progress reports from Appellant’s sexual offender treatment from July

2013 to July 2014, a polygraph examination dated June 17, 2014, indicating

the examiner did not discuss the allegations regarding the victim with

Appellant due to Appellant’s pending appeal, and a letter indicating Appellant

successfully completed the treatment program as of July 9, 2014. N.T.,

8/28/2016, at 12; Court Exhibit 1. The progress reports, issued on a

quarterly basis, were brief. Project Point of Light rated Appellant’s group

attendance and participation as excellent (except for one report in which he

received a satisfactory rating) and noted occasional concerns. For example,

the January 2014 report noted he was making slow progress, but did not

offer any further detail. None of the listed concerns discussed whether he

continued to deny the allegations throughout his therapy or the impact that

the lack of an admission might have had upon his therapy. Court Exhibit 1

at 9-14 (unnumbered).

The only testimony7 offered during the hearing was from Appellant’s

probation officer and the chief juvenile probation officer. Appellant’s

7

The notes of testimony from the hearing do not indicate whether the oath

to testify truthfully was administered to Appellant’s probation officer and the

chief juvenile probation officer prior to their statements on the record.

Although we are cognizant that the Juvenile Act permits judicial hearings to

proceed in an informal fashion, this Court recognized long ago that In re

Gault, 387 U.S. 1 (1967) mandates that witnesses at juvenile delinquency

hearings be sworn in so that the “juvenile may be confronted by witnesses

subject to oath and penalties for perjury.” Commonwealth ex rel.

Freeman v. Superintendent of State Corr. Inst. at Camp Hill, 242 A.2d

903, 908 (Pa. Super. 1968). “Without an administration of an oath to a

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probation officer agreed in response to a question from Appellant’s counsel

that Appellant was a “model probationee” during his supervision of

Appellant. N.T., 8/18/2016, at 9. Later during the hearing, the juvenile

court inquired whether the Commonwealth or the probation office had any

reports indicating whether Appellant admitted to engaging in impropriety

during his treatment. The chief juvenile probation officer responded that, to

her knowledge, Appellant did not admit anything during his treatment, but

qualified her answer by stating that his actual probation officer was more up

to date on the case than she was because he received a lot of the reports.

N.T., 8/18/2016, at 10. Nevertheless, no one asked Appellant’s probation

officer to provide testimony on the issue. The court also asked why the

probation office was recommending that Appellant undergo another

psychosexual evaluation since he had received one in the past. The chief

probation officer responded as follows:

[t]he psychosexual [evaluation] is going to determine any level

of risk. They will do an Abel [Assessment for Sexual Interest],

they do a psychological [evaluation]. He had this done before.

It’s just to determine is he [a] risk right now, does he need any

further treatment now that he’s admitting as opposed to when

he wasn’t admitting. It’s just erring on safety at this point in

time. And, you know, I’m really interested in seeing what

witness, the taking of testimony is meaningless.” Id. In fact, we have held

that “[t]he lack of an oath means that there was no testimony.” Tecce v.

Hally, 106 A.3d 728, 731 (Pa. Super. 2014). Without testimony, there is

“no record evidence upon which the trial court could support its order.” Id.

Nevertheless, to the extent that the oath was not administered, Appellant

neither objected at the hearing nor raised this issue on appeal, and therefore

this issue is waived. Id. at 732.

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Project Point of Light has to say. If they believe he needs no

more further treatment, he needs no more further treatment.

It’s just a tool to give us as to how to better supervise him for

the next year, if that’s how long he stays.

N.T., 8/18/2016, at 11-12.

As noted supra, the Juvenile Act requires the juvenile court to hear

evidence as to whether the juvenile is in need of treatment, supervision, or

rehabilitation, and then make a finding based on that evidence. The

Commonwealth failed to meet its burden in introducing such evidence, and

nothing in the record supports the juvenile court’s finding that Appellant is in

need of treatment, supervision, or rehabilitation. Significantly, while the

chief probation officer noted her qualified belief that Appellant had never

admitted to wrongdoing during his prior treatment, she also acknowledged

that she wanted Appellant to undergo the psychosexual evaluation because

she did not know whether Appellant was in need of further treatment.

Thus, her statement cannot support the finding that Appellant is actually in

need of further treatment.

According to the juvenile court, “[Appellant’s] records clearly show

that his initial treatment did not address his admission and that his

admission to the indecent assault offense would have been crucial to

effective treatment.” Id. at 5. Because the juvenile court fails to cite to the

record in its Rule 1925(a) opinion, we can only speculate to which records

the court is referring. The only records introduced at the hearing were the

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records from Project Point of Light. As the juvenile court even acknowledges

in its Rule 1925(a) opinion, the documentation from Project Point of Light

does not “make any mention of therapy that addressed [Appellant’s]

offenses.” Id. Therefore, the quality and effectiveness of Appellant’s

therapy at Project Point of Light as to this issue are unknown. While the

early records indicate that Appellant denied touching the victim’s vagina, the

later records do not indicate whether Appellant subsequently took

responsibility. Moreover, nothing in the Project Point of Light records

supports the juvenile court’s finding that Appellant’s admission to the

indecent assault offense was crucial to effective treatment.

The juvenile court’s opinion also refers to Appellant’s initial residential

treatment at AYS, stating Appellant’s failure to admit to indecent assault

“severely impeded the progress of his treatment” because “acceptance of

responsibility and offense disclosure are criteria to determine progress in

sexual offender treatment.” Juvenile Court Opinion, 11/28/2016, at 4.

Although we were unable to locate documentation or testimony from AYS

anywhere in the certified record, we presume that the juvenile court is

relying upon a document entitled “AYS Ross’ House Report of Progress/Court

Summary Individual Service Plan” addressing Appellant’s sexual offender

treatment during the period between July 13, 2012 and September 10,

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2012.8 We recognize that the juvenile court may have had knowledge of

this document from Appellant’s delinquency proceedings prior to his first

appeal. However, that disposition was vacated, and this document was not

admitted or even mentioned during the August 18, 2016 adjudicatory

hearing. Without notice of its use, Appellant had no opportunity to object to

its consideration or to cross-examine its author. “[A] trial court may not

consider facts or evidence dehors the record in making its determination.”

Eck v. Eck, 475 A.2d 825, 827 (Pa. Super. 1984). See also

Commonwealth v. McNeal, 120 A.3d 313, 328 (Pa. Super. 2015)

(vacating judgment of sentence because the trial court “convicted McNeal of

a crime with evidence that the Commonwealth never introduced at trial. This

8

The Commonwealth appended a copy of this report to its brief as part of its

supplemental reproduced record. Appellant filed a motion to strike this

document from the appellate record, as well as portions of the

Commonwealth’s brief referencing the document, based upon Appellant’s

contention that the document is not part of the certified record in this case.

Motion to Strike, 4/13/2017, at ¶7. In its response to Appellant’s motion to

strike, the Commonwealth avers that the AYS report was made part of the

record in the juvenile court based upon the juvenile court’s reliance on the

document in its Rule 1925(a) opinion. It also contends Appellant was aware

of the document due to the Commonwealth’s attaching it to its letter brief to

the juvenile court in response to Appellant’s pre-adjudication and disposition

hearing memorandum, as well as the document’s use in an unspecified

review of placement proceeding (which presumably occurred before the prior

adjudication was vacated, as Appellant was not in placement after remand).

Commonwealth’s Response to Motion to Strike, 4/28/2017, at ¶ 7. The

Commonwealth provides no citations to the record, and based upon our

review, these documents do not appear in the certified record. However,

based upon our resolution of this issue, we deny Appellant’s motion to strike

as moot.

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was patent error.”) If the evidence does not appear of record, we may not

give evidence cited in a brief or in the opinion of the lower court any effect

on appeal. Commonwealth v. Reno, 449 A.2d 630, 632 (Pa. Super.

1982). Thus, the juvenile court erred by considering the AYS report, and the

AYS report cannot support its finding that Appellant needed treatment. 9

It is clear from the juvenile court’s opinion that it impermissibly shifted

the burden regarding whether Appellant was in need of treatment,

supervision, or rehabilitation to Appellant. In its opinion, the court stated

“at no point in the pre-adjudication and disposition hearing memorandum

did [Appellant] aver that he either admitted or received treatment focused

on his delinquent acts in this case.” Id. at 5 (unnecessary capitalization

omitted). Moreover, despite the lack of relevant documentation and the

Commonwealth’s failure to call any of Appellant’s former service providers or

other relevant witnesses, the juvenile court concluded the absence of

evidence was affirmative proof that Appellant needed treatment, when in

reality all it demonstrates is that the Commonwealth failed to meet its

burden. The juvenile court opined that the lack of evidence suggested that

9

Even assuming arguendo that it was proper for the juvenile court to have

relied upon this document in adjudicating Appellant delinquent, it does not

support the court’s finding that Appellant was still in need of further

treatment in August 2016. While Appellant’s treatment faced obstacles back

in mid-2012, this document does not address whether Appellant continued

to deny any wrongdoing or whether Appellant made progress in treatment at

AYS after the document’s submission or later in treatment at Project Point of

Light.

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Appellant’s former treatment was ineffective now that he admitted to

engaging in indecent assault. This may be the case. But it is also entirely

possible that Appellant’s former treatment is what caused Appellant to

accept responsibility for his actions at age 18 during the current

proceedings. Either way, it is the Commonwealth’s burden to provide

evidence proving that Appellant needed treatment, supervision, or

rehabilitation at the time of the adjudicatory hearing, and the

Commonwealth failed to do so.

Due to its statutory mandate to make a finding based upon evidence

proving that Appellant is in need of treatment, the juvenile court abused its

discretion by basing its finding upon its own opinion or speculation. The

juvenile court had tools at its disposal to assist the court in determining

whether Appellant needed further treatment prior to adjudicating Appellant

delinquent.10 Having elected not to use those tools, the juvenile court was

10

Because Appellant admitted to engaging in a delinquent act, “prior to the

hearing on need for treatment,” the juvenile court could have directed that a

“social study and report in writing to the court be made by an officer of the

court or other person designated by the court, concerning the child, his

family, his environment, and other matters relevant to disposition of the

case.” 42 Pa.C.S. § 6339(a). It also could have ordered Appellant to

undergo a psychosexual evaluation prior to adjudication. 42 Pa. C.S.

§ 6339(b). (“During the pendency of any proceeding the court may order

the child to be examined at a suitable place by a physician or

psychologist….”). The Juvenile Act also permits a juvenile court, “on its

motion or that of a party,” to “continue the [adjudicatory hearing] for a

reasonable period, within the time limitations imposed by this section, to

receive reports and other evidence bearing on the disposition or the need for

treatment, supervision[,] or rehabilitation.” 42 Pa.C.S. § 6341(e).

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limited to basing its decision upon the evidence presented at the

adjudicatory hearing.

Based on the foregoing, we hold that the juvenile court abused its

discretion in finding that Appellant was in need of treatment because this

finding is not supported by the record. Therefore, we vacate the juvenile

court’s dispositional order and reverse the adjudication of delinquency. 11

Dispositional order vacated. Adjudication of delinquency reversed.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/18/2017

11

Because we grant Appellant the requested relief based upon his first

question, we need not consider his double jeopardy and due process

challenge.

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