In the Interest of: D.P., Appeal of: D.P.
233 A.3d 847
Pa. Super. Ct.2020Background
- Appellant D.P., age 15 at the time, was adjudicated delinquent for indecent assault of M.M., a nine‑year‑old cousin, based on an incident at a relative’s home involving attempted penetration, touching, and scratching.
- M.M. reported the assault to a family friend and a school counselor; a pediatric exam noted a very small abrasion on her labia.
- Appellant denied the allegations; defense witnesses disputed that Appellant entered M.M.’s bedroom that night.
- The juvenile court adjudicated Appellant of indecent assault of a person under 13, graded as a third‑degree felony (based on a theory requiring a “course of conduct”).
- At disposition the court ordered detention and placement pending treatment; Appellant’s post‑disposition motion was denied and he appealed.
- On appeal Appellant argued the felony grading (and resulting “illegal sentence”) was improper because the charging documents and court did not allege or notify him that the Commonwealth was proceeding under the course‑of‑conduct provision; the Commonwealth argued waiver and sufficiency of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of sentence / grading (notice of course‑of‑conduct) | Appellant: grading to felony 3 was illegal because he lacked notice that Commonwealth relied on §3126(b)(3)(ii) (course of conduct). | Commonwealth: claim is waived; Spruill narrows Popow; no fatal sentencing defect in dispositional order. | Court: claim treated as challenging adjudication (conviction), not a non‑waivable sentence error; Appellant waived lack‑of‑notice argument for failure to raise below. |
| Sufficiency of evidence to prove a “course of conduct” (to justify felony 3 grading) | Appellant: evidence did not establish multiple acts over time required for course of conduct. | Commonwealth: M.M.’s unprompted testimony described prior similar assaults “again and again”; corroborating observations of injury. | Court: Evidence sufficient—M.M.’s testimony established multiple acts over time; felony‑3 grading sustained. |
Key Cases Cited
- Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004) (to elevate grading by course of conduct, Commonwealth must allege, prove, and have the trier instructed on that factor)
- Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013) (distinguishes claims attacking a conviction from sentencing claims and instructs careful characterization of alleged "illegal sentencing" issues)
- Commonwealth v. Kelly, 102 A.3d 1025 (Pa. Super. 2014) (defines course of conduct as multiple acts over time)
- In re L.A., 853 A.2d 388 (Pa. Super. 2004) (explains differences between juvenile adjudications and adult criminal convictions)
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (issues not raised in a Pa.R.A.P. 1925(b) statement are waived)
- Commonwealth v. Akhmedov, 216 A.3d 307 (Pa. Super. 2019) (sets standard of review for sufficiency challenges)