Com. v. D.A.R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
D.A.R.
Appellee No. 694 MDA 2016
Appeal from the Order Entered April 18, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005020-2015
BEFORE: BOWES, OLSON and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 25, 2017
Appellant, the Commonwealth of Pennsylvania (the Commonwealth),
appeals from the order entered on April 18, 2016, granting a motion filed by
D.A.R. to decertify this matter to the Juvenile Division of the Court of
Common Pleas of Lancaster County. Upon careful review, we affirm.
The trial court summarized the facts and procedural history of this
case as follows:
[Appellee, D.A.R.] is charged with two counts of robbery,
two counts of criminal conspiracy to commit robbery, and
two counts of theft by unlawful taking or disposition.
[D.A.R.’s] charges arose from two similar incidents on
September 14, 2015, and September 20, 2015. [D.A.R.]
allegedly called the Lancaster City Cab company to request
a pick-up on each of those dates. When the driver arrived
on each occasion, a co-conspirator allegedly pressed what
appeared to be a gun against the driver and demanded
money. [D.A.R.] was seventeen (17) years old at the time
the alleged offenses occurred.
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The case was direct-filed in adult court, pursuant to 42
Pa.C.S.A. § 6302. [D.A.R.] waived his preliminary hearing
before Magisterial District Judge David Miller on October 27,
2015, acknowledging that a prima facie case existed with
respect to the charges against him. On November 9, 2015,
[D.A.R.], by and through his attorney Randall L. Miller, Esq.,
filed an emergency motion to remand [the] case to [the]
Juvenile Division of the Court of Common Pleas of Lancaster
County. On December 7, 2015, the [trial] court entered an
opinion (hereinafter “remand opinion”) finding that the
charges were properly filed in adult criminal court, as well
as an order denying [D.A.R.’s] emergency motion.
On November 18, 2015, [D.A.R.] filed a motion to decertify
[the] case to [the] Juvenile Division of the Court of
Common Pleas of Lancaster County, Pennsylvania, pursuant
to 42 Pa.C.S.A [§] 6355 (hereinafter “motion to decertify”).
On December 8, 2015, the [trial] court issued an order
appointing Jonathon M. Gransee, Psy.D., to perform a
psychological evaluation of [D.A.R.]. Following a
decertification hearing on April 12, 2016, the [trial] court
issued its opinion and order, dated April 18, 2016. The
[trial] court found “that the transfer of this case from
criminal proceedings will serve the public interest.” The
[trial] court found [D.A.R.’s] evidence to be credible, and
held that “[D.A.R.] has met his burden to prevail on a
petition requesting transfer from criminal proceedings.” On
April 28, 2016, the Commonwealth filed an interlocutory
appeal to [this] Court. On May 3, 2016, the [trial] court
entered an order directing the Commonwealth to file a
concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b). On May 19, 2016, the
Commonwealth filed its statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). [The trial court
filed a sur opinion pursuant to Pa.R.A.P. 1925(a) on June 9,
2016.]
Trial Court Opinion, 6/9/2016, at 1-3 (superfluous capitalization, footnotes
and record citations omitted).
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On appeal, the Commonwealth presents the following issue for our
review:
I. Did the trial court abuse its discretion by misapplying or
overriding the law in its consideration of 42 Pa.C.S.A.
§ 6355(a)(4)(iii) with respect to the following factors:
A. Factor (A) – impact of offense on victims
B. Factor (B) – impact of offense on the community
C. Factor (D) – the nature and circumstances of the
offense allegedly committed
D. Factor (E) – the degree of the child’s culpability
Commonwealth’s Brief at 1 (complete capitalization omitted).
The Commonwealth generally argues that the trial court abused its
discretion or erred as a matter of law by “improperly shifting the burden of
proof from [D.A.R.] to the Commonwealth” when examining various factors
for decertification from the criminal court to the juvenile court. Id. at 13.
With regard to Factor (A) above, the Commonwealth argues that the trial
court erred by concluding it could not determine the effect the crimes had
upon the victims because there was no victim testimony. Id. at 12. The
Commonwealth avers it was not required to produce such evidence. Id. at
13. Additionally, the Commonwealth contends that the trial court erred in
assessing Factor (A) by relying upon Dr. Gransee’s opinion that D.A.R. is
amenable to rehabilitation, because “the likelihood of rehabilitation is
irrelevant as to the effect of the crime on the victims.” Id. at 14.
Concerning the impact of the offense on the community (Factor (B)), the
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Commonwealth contends that the trial court “created an artificial
standard[,]” and then shifted the burden of production, when it stated that
the robberies did not have “a unique detrimental effect on the community
where it occurred, as no testimony was presented to that effect.” Id. at 15.
With regard to the nature and circumstances of the offense allegedly
committed and the child’s culpability factors (Factors (D) and (E)), the
Commonwealth argues that the trial court’s characterization of D.A.R.’s
involvement in the alleged crimes as limited, because he was not physically
in control of the firearm used in the commission of both robberies, was
erroneous because D.A.R. shared equal responsibility as an accomplice. Id.
at 18-21.
In Commonwealth v. Brown, 26 A.3d 485 (Pa. Super. 2011), this
Court set forth the principles governing our review of a decertification order:
The Juvenile Act, 42 Pa.C.S.A. § 6301[,] et seq., is designed
to effectuate the protection of the public by providing
children who commit ‘delinquent acts' with supervision,
rehabilitation, and care while promoting responsibility and
the ability to become a productive member of the
community. 42 Pa.C.S.A. § 6301(b)(2). The Juvenile Act
defines a ‘child’ as a person who is under eighteen years of
age. 42 Pa.C.S.A. § 6302. Typically, most crimes involving
juveniles are tried in the juvenile court of the Court of
Common Pleas.
Our legislature, however, has deemed some crimes so
heinous that they are excluded from the definition of ‘a
delinquent act.’ Pursuant to 42 Pa.C.S.A. § 6322(a) and
§ 6355(e), when a juvenile is charged with a crime,
including murder or any of the other offenses excluded from
the definition of ‘delinquent act’ in 42 Pa.C.S.A. § 6302, the
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criminal division of the Court of Common Pleas is vested
with jurisdiction. See 42 Pa.C.S.A. § 6302[.]
When a case involving a juvenile goes directly to the
criminal division, the juvenile can request treatment within
the juvenile system through a transfer process called
‘decertification.’ To obtain decertification, it is the juvenile's
burden to prove, by a preponderance of the evidence,[1]
that transfer to the juvenile court system best serves the
public interest. 42 Pa.C.S.A. § 6322(a).
Pursuant to § 6322(a), the decertification court shall
consider the factors contained in § 6355(a)(4)(iii) in
determining whether the child has established that the
transfer will serve the public interest. These factors are as
follows:
(A) the impact of the offense on the victim or
victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any
individual posed by the child;
(D) the nature and circumstances of the offense
allegedly committed by the child;
(E) the degree of the child's culpability;
(F) the adequacy and duration of dispositional
alternatives available under this chapter and in the
adult criminal justice system; and
(G) whether the child is amenable to treatment,
supervision or rehabilitation as a juvenile by
considering the following factors:
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1
A preponderance of the evidence is defined as the greater weight of the
evidence, i.e., to tip a scale slightly is the criteria or requirement for
preponderance of the evidence. Karch v. Karch, 885 A.2d 535, 537 (Pa.
Super. 2005) (internal citation and quotations omitted).
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(I) age;
(II) mental capacity;
(III) maturity;
(IV) the degree of criminal sophistication
exhibited by the child;
(V) previous records, if any;
(VI) the nature and extent of any prior
delinquent history, including the success or
failure of any previous attempts by the juvenile
court to rehabilitate the child;
(VII) whether the child can be rehabilitated prior
to the expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors[.]
42 Pa.C.S.A. § 6355(a)(4)(iii).
While the Juvenile Act requires that a decertification court
consider all of these factors, it is silent as to the weight
assessed to each by the court.[2] However, [w]hen a
juvenile seeks to have his case transferred from the criminal
division to the juvenile division, he must show that he is in
need of and amenable to treatment, supervision or
rehabilitation in the juvenile system. If the evidence
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2
“A decertification court must consider all the facts set forth in § 6355 of
the Juvenile Act, but it need not address, seriatim, the applicability and
importance of each factor and fact in reaching its final determination.”
Commonwealth v. L.P., 137 A.3d 629, 636 (Pa. Super. 2016) (citation
omitted). “Furthermore, we presume the trial court considered the entire
record in making its determination, and it is not required to give a detailed
explanation justifying its decision.” Id.-6-
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presented fails to establish that the youth would benefit
from the special features and programs of the juvenile
system and there is no special reason for sparing the youth
from adult prosecution, the petition must be denied and
jurisdiction remains with the criminal division.
The ultimate decision of whether to certify a minor to stand
trial as an adult is within the sole discretion of a
decertification court. This Court will not overturn a decision
to grant or deny decertification absent a gross abuse of
discretion. An abuse of discretion is not merely an error of
judgment but involves the misapplication or overriding of
the law or the exercise of a manifestly unreasonable
judgment based upon partiality, prejudice or ill will.
Brown, 26 A.3d at 491–493 (most quotations, some citations, and
emphasis omitted).
Here, the trial court “assessed the evidence and testimony presented
and believe[d] that [D.A.R.] will have a greater likelihood of successful
rehabilitation in the juvenile court system than in adult criminal court [and
that D.A.R.’s] successful rehabilitation [will] serve[] the public interest.”
Trial Court Opinion, 6/9/2016, at 8. The trial court based its opinion, in
large part, upon the testimony of Dr. Gransee wherein he opined that D.A.R.
“has borderline intellectual functioning, meaning he functions below what is
expected for children his age, and has been diagnosed with
Attention-Deficit/Hyperactivity Disorder, which manifests itself in inattention
and impulsivity.” Id. at 10. “Moreover, [the trial court found D.A.R.]
presented credible evidence that the adult co-defendant, Michael Watkins,
had a troublesome influence on [D.A.R.] and was spending time with
[D.A.R.] around the time of the robberies.” Id. at 7. The trial court also
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concluded that while D.A.R. “has had some [prior] success under the
supervision of the Office of Juvenile Probation, [he] has never had the
opportunity to receive treatment through placement or [r]esidential
[t]reatment [which] could successfully address [his] needs … by the time he
turns twenty-one (21).” Id. at 11, 13. The Commonwealth does not
dispute that D.A.R. produced the above-mentioned evidence and the record
is devoid of evidence introduced by the Commonwealth to refute the
foregoing findings. Thus, we conclude that D.A.R. met his burden of
showing that Factors (C), (F), and (G) of Section 6355(a)(4)(iii) supported
decertification.
Further, while the trial court cites the Commonwealth’s failure to
produce rebuttal evidence in support of Factors (A), (B), (D), and (E), we
disagree that the trial court impermissibly shifted the burden of production
to the Commonwealth. The burden may have shifted had D.A.R. not
produced evidence. As it stands, however, the trial court merely stated that
without additional rebuttal evidence from the Commonwealth, the trial court
was required to weigh the individual factors based solely upon the evidence
presented and not based upon conjecture. Upon review, we conclude the
evidence presented by D.A.R. was sufficient, under the preponderance of the
evidence standard, to support the trial court’s decertification determination
in and of itself under the Factors (A), (B), (D), and (E) above. We will
examine those factors separately.
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First, with respect to Factor (A), the trial court generally found that the
robberies had a negative impact on the victims; we read this as a favorable
finding for the Commonwealth. The trial court declined to go further to say
that this factor outweighed others, rendering decertification improper.
Instead, the trial court weighed this factor, along with the others, to
determine that D.A.R. met his burden of production. This is neither grounds
for finding a misapplication of law, nor a basis to disturb the trial court’s
ruling given the Juvenile Act is silent as to what weight is attributable to
each factor.
Second, with regard to the impact of the offense on the community
pursuant to Section 6355(a)(4)(iii)(B), the trial court determined “that crime
generally, and certainly the crime of robbery, has a negative impact on the
community[,]” but, the trial court did not “find [D.A.R.’s] crime to have had
a unique detrimental effect on the community where it occurred[.]” Trial
Court Opinion, 4/18/2016, at 3. In its sur opinion, the trial court clarified it
was not imposing a new standard by requiring proof of a unique detrimental
effect, but instead “was merely emphasizing, once again, that if a negative
effect of a crime was all that was necessary to prevent a case from being
transferred to juvenile court, then a decertification hearing would be a
pointless activity.” Trial Court Opinion, 6/10/2016, at 5. We agree with the
trial court’s assessment. Here, D.A.R. presented evidence that, although the
participants pre-planned the robberies, the offenses constituted
garden-variety hold-ups. There was simply no evidence to suggest these
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robberies impacted the community more than other armed robberies. For
example, there was no evidence tending to show that, in the wake of the
robberies, Lancaster City Cab no longer offered transportation services to
the area where the crimes occurred. The trial court weighed Factor (B) and
determined it militated in favor of decertification. We will not usurp that
conclusion.
Next, with respect to the nature and circumstances of the alleged
offense, the trial court looked at D.A.R.’s participation in the incident, finding
that “accomplice liability is not a factor[.]” Id. at 6. Initially, we recognize
that
[o]ur task is guided by the sound and settled principles set
forth in the Statutory Construction Act, including the
primary maxim that the object of statutory construction is
to ascertain and effectuate legislative intent. 1 Pa.C.S.A.
§ 1921(a). In pursuing that end, we are mindful that when
the words of a statute are clear and free from all ambiguity,
the letter of it is not to be disregarded under the pretext of
pursuing its spirit. 1 Pa.C.S.A. § 1921(b). Indeed, as a
general rule, the best indication of legislative intent is the
plain language of a statute. In reading the plain language,
words and phrases shall be construed according to rules of
grammar and according to their common and approved
usage, while any words or phrases that have acquired a
peculiar and appropriate meaning must be construed
according to that meaning. 1 Pa.C.S.A. § 1903(a). However,
when interpreting non-explicit statutory text, legislative
intent may be gleaned from a variety of factors, including,
inter alia: the occasion and necessity for the statute; the
mischief to be remedied; the object to be attained; the
consequences of a particular interpretation; and the
contemporaneous legislative history. 1 Pa.C.S.A. § 1921(c).
Moreover, while statutes generally should be construed
liberally, penal statutes are always to be construed strictly,
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1 Pa.C.S.A. § 1928(b)(1), and any ambiguity in a penal
statute should be interpreted in favor of the defendant.
Notwithstanding the primacy of the plain meaning doctrine
as best representative of legislative intent, the rules of
construction offer several important qualifying precepts. For
instance, the Statutory Construction Act also states that, in
ascertaining legislative intent, courts may apply, inter alia,
the following presumptions: that the legislature does not
intend a result that is absurd, impossible of execution, or
unreasonable; and that the legislature intends the entire
statute to be effective and certain. 1 Pa.C.S.A.
§ 1922(1),(2). Most importantly, the General Assembly has
made clear that the rules of construction are not to be
applied where they would result in a construction
inconsistent with the manifest intent of the General
Assembly. 1 Pa.C.S.A. § 1901.
In re K.A.P., 916 A.2d 1152, 1155–1156, (Pa. Super. 2007).
Here, the trial court is required to consider “the nature and
circumstances of the offense allegedly committed by the child[.]” 42
Pa.C.S.A. § 6355(a)(4)(iii)(D) (emphasis added). The statutory language is
clear that the trial court is required to examine the nature and circumstances
of the child’s conduct. The statute is silent regarding accomplice liability.
Thus, under a plain meaning reading of the statute, the trial court’s sole task
is to examine the juvenile’s role in the alleged crimes. Accomplice liability
may be a viable theory under which convictions can be obtained. However,
the overarching object here is to assess a juvenile’s amenability to
treatment. If a possible conviction based upon accomplice liability defeated
participation in the juvenile system, then decertification would be futile in
every instance where a juvenile even remotely aided in the commission of a
crime. Moreover, the legislative intent behind decertification is to identify
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juveniles amenable to treatment in the juvenile system, not to speculate as
to whether a juvenile could be found guilty in the adult system. Under a
plain reading of Section 6355(a)(4)(iii)(D), we discern no abuse of discretion
or misapplication of law in the trial court’s determination that D.A.R. “was
not the person who actually possessed a weapon and robbed the victims”
and he “participate[d] in planning and mak[ing] phone calls to the taxicab
company for the adult co-defendant.” Trial Court Opinion, 6/10/2016, at 7.
Moreover, upon review, we did not discover decisional law to support
the proposition that the trial court should consider accomplice liability in
rendering a decision on decertification. However, we find some guidance in
our Court’s decision in Commonwealth v. Ramos, 920 A.2d 1253 (Pa.
Super. 2007). In Ramos, the juvenile “challenge[d] the trial court’s
determination that he possessed a deadly weapon so as to exclude him from
the jurisdiction of the juvenile court.” Ramos, 920 A.2d at 1257. Similar to
this case, Ramos “and his cohorts went on a crime spree wherein they
robbed several business establishments at gunpoint[.]” Id. at 1254.
“[Defense] [c]ounsel emphasized that [Ramos] consistently maintained the
weapons were not real guns, but that he possessed a BB gun and his
cohort(s) possessed a paintball gun or guns.” Id. at 1259. We determined
that Ramos “bore the burden of proving that the gun was not a deadly
weapon.” Id. Further, we found, “[i]f he actually used an item during a
robbery that could not be construed as a deadly weapon, the onus was upon
him to present it, or evidence relative thereto, to the court to support his
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[claim].” Id. The Ramos Court did not rely on a theory of accomplice
liability in determining decertification. As suggested in Ramos, the juvenile
bears the burden of producing evidence that he did not actually use a deadly
weapon to support decertification. Here, there is no dispute that D.A.R.
produced evidence that his co-defendant possessed the firearm during the
commission of the alleged robberies. While D.A.R. is accountable, in certain
circumstances, for all of the crimes of a co-defendant at trial,3 at this stage
of this case, the trial court is merely considering the juvenile’s role in the
alleged crimes along with his chance of rehabilitation in the juvenile system.
If, by a preponderance of the evidence, the juvenile shows that treatment is
appropriate, decertification is proper. Thus, we discern no abuse of
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3
We previously determined:
[A] person may be found guilty of a criminal offense if he
acts as an accomplice. 18 Pa.C.S.A. §§ 306(a), 306(b)(3).
An accomplice is someone who, with the intent of promoting
or facilitating the commission of the offense, aids or agrees
or attempts to aid [another person] in planning or
committing the crime. 18 Pa.C.S.A. § 306(c)(1)(ii). The
criminal intent necessary to establish accomplice liability is
identical to the criminal intent necessary to establish
conspiracy. Finally, even if a conspirator did not act as a
principal in committing the underlying crime, he is still
criminally liable for the actions of his co-conspirators taken
in furtherance of the conspiracy.
Commonwealth v. Hennigan, 753 A.2d 245, 254 (Pa. Super. 2000)
(internal case citations, brackets and quotations omitted).
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discretion in examining D.A.R.’s actual role in the alleged crimes when
applying Section 6355(a)(4)(iii)(D).
For similar reasons, we discern no abuse of discretion by the trial court
in analyzing Section 6355(a)(4)(iii)(E). Factor (E) states, the trial court is to
assess “the degree of the child's culpability.” Again, the focus is on
D.A.R.’s (and not the co-defendant’s) degree of culpability. Here, the trial
court determined that D.A.R. “plann[ed] and [made] phone calls to the
taxicab company for the adult co-defendant” who “had a troublesome
influence” on D.A.R. Trial Court Opinion, 6/10/2016, at 7. Accordingly, the
trial court determined that while D.A.R. was culpable, his actions were
spurred on by his adult co-defendant. The trial court further recognized
“[i]mpulsivity, keeping poor company, and being influenced by negative
peers are problem areas in which the juvenile system is well equipped to
provide treatment and rehabilitation.” Id. at 8. We discern no abuse of
discretion.
Accordingly, having reviewed the evidence, the statutory factors set
forth under the Juvenile Act for decertification, and the trial court’s
conclusions, we confirm that D.A.R. met his burden of proof to support
decertification to juvenile court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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