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[U] In re J.E.L.

Superior Court of Pennsylvania

February 11, 2014

IN THE MATTER OF J.E.L., JR. APPEAL OF J.E.L., JR.

NON-PRECEDENTIAL DECISION

Appeal from the Order July 5, 2013 in the Court of Common Pleas of Montgomery County, Juvenile Division at No(s): CP-46-JV-0000385-2013

BEFORE: ALLEN, STABILE, and STRASSBURGER [*] , JJ.

MEMORANDUM

STRASSBURGER, J.

J.E.L., Jr. (Appellant) appeals from the dispositional order of July 5, 2013, providing for probation, following his adjudication of delinquency based upon the crimes of aggravated assault, simple assault, and disorderly conduct.[1] Counsel for Appellant has filed a Petition to Withdraw as Counsel pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel's petition to withdraw and affirm the dispositional order.

The juvenile court summarized the history of this case as follows, based on the testimony that occurred at an adjudicatory hearing on June 12, 2013.

At the hearing, the Commonwealth presented the testimony of Theresa Grossman, a teacher at Eisenhour Science Technology Leadership Academy (the school). Grossman testified that [Appellant] was one of her students. Grossman testified that on May 16, 2013, there was a verbal altercation in her classroom between [Appellant] and other students. Grossman ended the lesson and directed two of her students to head to the student computers. Grossman directed [Appellant] and another student to return to their desks and stop speaking to each other. The other student went to his desk and [Appellant] eventually went back to his desk. [Appellant's] desk and the other student's desk were a couple of feet apart. Grossman testified that [Appellant] started to get up out of his seat and move toward the other student. Grossman tried to remove [Appellant] from the classroom. She reached for [Appellant's] hand but he pulled away and kept going toward the other student. Grossman testified "I just kept trying to pull him, come on, we need to leave the room, let's go. At that point it was like a struggle because he was fiercely trying to go the other way, and that's when he bent low and picked up my leg." Grossman testified that she fell over and suffered a fracture of her tibial plateau.
The Commonwealth also presented testimony of Rachel McClellan Kirksey, the assistant principal at the school. Kirksey testified that [Appellant] came to the school office on May 16, 2013 and stated that he was assaulted by Grossman. Kirksey went to Grossman's classroom to check on her. Kirksey returned to her office and told [Appellant] that Grossman was seriously injured. Kirksey testified that [Appellant] stayed with her until the end of the day. Kirksey testified that she had to stop [Appellant] from talking about the incident with other students. Kirksey testified "He said he threw his teacher down on the ground. Another student, he told them he flipped her. He told another child that he -- pretty much repeating the same thing. He did it on at least four occasions. I told him to stop talking about it." Kirksey testified that he was saying it in a braggadocious kind of way.
[Appellant] presented the testimony of Patricia Culbreath, a paraprofessional at the school. Culbreath testified that on May 16, 2013, Grossman was trying to remove [Appellant] from the classroom after [Appellant] and another student argued. Culbreath testified that [Appellant] was wiggling around as Grossman was trying to get him out of the room. She testified that Grossman grabbed behind his neck and as she was pulling, she grabbed a piece of his hair. Culbreath testified that [Appellant] "leaned forward, and within a split second, he had Miss Grossman's leg in the air, and it was two or three seconds, she fell from there and he ran out of the room."
[Appellant] also testified in his own defense. [Appellant] testified that on May 16, 2013, he and another student had an argument in the classroom. [Appellant] testified that Grossman tried to get him away from the argument. He testified that Grossman pulled his hair and scratched him. He testified that when Grossman grabbed his hair and scratched him, he pulled up her leg so Grossman would let him go. [Appellant] testified that he did not want to hurt Grossman. [Appellant] testified that he told other students about the incident because he did not want them to do what he did.
At the conclusion of the hearing, the juvenile court credited the testimony of Grossman and Kirksey. The juvenile court found, beyond a reasonable doubt, that [Appellant] pulled Grossman's leg and intended to flip her. The juvenile court also found that the act of lifting Grossman's leg and flipping her was an intentional act. The juvenile court found [Appellant] guilty of [the aforementioned crimes]. The juvenile court then adjudicated [Appellant] delinquent. On July 5, 2013, the juvenile court held a disposition hearing at which time the juvenile court placed [Appellant] on probation and released him to the custody of his parents.

Juvenile Court Opinion, 9/26/2013, at 1-3 (citations omitted).

Appellant filed a timely notice of appeal, and both Appellant and the juvenile court complied with Pa.R.A.P. 1925. Counsel for Appellant has filed an Anders brief and a motion to withdraw as counsel with this Court. Appellant has not filed a response.

As a preliminary matter, we address counsel's application to withdraw before reaching the merits of the issues raised in the brief. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997)) ("When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw.").

To withdraw pursuant to Anders, counsel must: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal;[2] and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points that the appellant deems worthy of review. Commonwealth v. Garang, 9 A.3d 237, 240 (Pa.Super. 2010). Thereafter, this Court independently reviews the record and issues. Id.

Counsel petitioned this Court to withdraw, certifying that he has made a thorough review of the case and determined that there are no non-frivolous issues to raise on appeal. Counsel has filed a brief that includes a summary of the history and facts of the case, a point of arguable merit, and counsel's analysis of why he has concluded that the appeal is frivolous. Counsel has certified that he served Appellant with a copy of the Anders brief and attached a copy of his letter to Appellant advising him that he may obtain new counsel or raise additional issues pro se. As such, counsel has complied with the requirements of Anders and Santiago.[3] We therefore proceed to an independent review of the record and the issue that counsel stated arguably supports an appeal, which is as follows: "Is the juvenile court's adjudication of the juvenile [A]ppellant as delinquent with respect to the offen[s]e of aggravated assault supported by legally sufficient evidence of record?" Appellant's Brief at 4.

We consider Appellant's question mindful of the following standard of review.

When a juvenile is charged with an act that would constitute a crime if committed by an adult, the Commonwealth must establish the elements of the crime by proof beyond a reasonable doubt. When considering a challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth.
In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth need not be absolutely incompatible with a defendant's innocence. Questions of doubt are for the hearing judge, unless the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth.

In re V.C., 66 A.3d 341, 348-349 (Pa.Super. 2013) (quoting In re A.V., 48 A.3d 1251, 1252–1253 (Pa.Super. 2012)).

The relevant section of the aggravated assault statute provides the following.

(a) Offense defined.--A person is guilty of aggravated assault if he:
(5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member or other employee, including a student employee, of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school while acting in the scope of his or her employment or because of his or her employment relationship to the school[.]

18 Pa.C.S. 2702(a)(5).

Here, the juvenile court concluded that Appellant intended to injure Grossman, his teacher, by bending over and lifting her leg off the ground. Furthermore, these actions actually caused Grossman to fracture her left leg. Moreover, Appellant then "bragged about what he had done to Grossman on at least four occasions[.]" Juvenile Court Opinion, 9/28/2013, at 5. The juvenile court found that these actions "buttressed" its conclusion that Appellant intended to cause bodily harm to Grossman. Id. When the evidence is viewed in the proper light, it supports the juvenile court's conclusion and a determination that the Commonwealth presented sufficient evidence to prove that Appellant violated 18 Pa.C.S. § 2702(a)(5).

After an independent review of the record and applicable authority, we agree with counsel that Appellant's sufficiency challenge lacks basis in law or fact. Accordingly, we grant counsel leave to withdraw and affirm the dispositional order.

Petition to withdraw as counsel granted. Dispositional order affirmed.

Judgment Entered.


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