J-S08028-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

I.T.S.,

                                                    No. 1299 WDA 2017


               Appeal from the Order entered August 30, 2017,
               in the Court of Common Pleas of Indiana County,
             Criminal Division at No(s): CP-32-CR-0001268-2016.


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                         FILED APRIL 25, 2018

     In this matter, the Commonwealth appeals the trial court’s decision to

transfer the criminal case of the juvenile Appellee, I.T.S., from adult

proceedings to juvenile court. Because the trial court’s decision was not a

gross abuse of discretion, we find the decertification of the case was proper.

We affirm.

     We summarize the factual and procedural history of this case as follows.

On October 27, 2016, at around 1 a.m., Pennsylvania State Police Trooper

John McCombie was assigned to investigate a double homicide at a residence

in Clymer, Pennsylvania. The victims were Timothy Gardner, found on the

first floor, and Jacqueline Brink, found in a second-floor bedroom.    It was

further discovered that two children, unharmed, had been removed from the




*Former Justice specially assigned to the Superior Court.
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residence by first responders. Trooper McCombie interviewed the decedents’

next-door neighbor, who witnessed I.T.S. leaving the scene.

       I.T.S. indicated that he was contacted by one of the two adult co-

defendants to sneak out of his residence to meet up with them to purchase

drugs from Gardner. Co-defendant Nathanial Price texted I.T.S. during the

evening of October 26, 2016. The text read: “True I got real shit going down

tonight. I need you to ride with me.” I.T.S. responded: “I’m a rider, bro. I

told you from day one I’m about it.” Price texted, “Remember that convo we

had a while back?” I.T.S. replied, “I can’t wait to find out. Like I’m pumped

up for it, no backing out whatever it is.”       Price then stated: “PPL will be

dropping tonight.” I.T.S. responded, “I’m ready and my sis ain’t in bed yet,

bro. Just be patient. I promise we will get it done tonight. The later the

better, bro. This ain’t my first rodeo.”1 Subsequent texts concerned I.T.S.’s

sneaking out of his house. Soon thereafter, I.T.S. rode in Price’s vehicle with

Price and co-defendant Justin Stevenson to Gardner’s home.                 I.T.S.

maintained that he thought these texts were about their plan to buy drugs.

He claimed that he believed that the phrase “PPL will be dropping tonight” was

in reference to dropping acid.

       I.T.S. was friends with Gardner and could facilitate the transaction;

Gardner did not know the co-defendants. Once inside, Gardner went upstairs


____________________________________________


1At the time of the incident, I.T.S. was living in the care of his adult sister
and her husband.

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to retrieve the drugs.          When he came back downstairs, co-defendant

Stevenson struck Gardner with a metal pipe (later discovered to be a “breaker

bar”). This violent act caused I.T.S. to flee; he went outside where he made

contact with a neighbor. I.T.S. originally stated that he walked back home,

but he later confessed to waiting for the co-defendants in the car parked

across the street. A few minutes later, the co-defendants left the residence

with a lockbox. The defendants drove to a residence on Pellas Road. State

police conducted a search of the Pellas house where they found evidence of

the crime. An autopsy of the victims indicated that they bled to death after

being struck by the breaker bar in the back of their heads.

        I.T.S. was charged with two counts of criminal homicide and one count

of criminal conspiracy to commit robbery – inflict serious bodily injury.2 He

petitioned the court for decertification, seeking a transfer from criminal court

to juvenile court.

        I.T.S. was nearly 18 years old at the time of the decertification hearing.

That hearing was held before the trial court on August 16, 2017.            I.T.S.

presented four witnesses: Psychologist Dr. Joseph Roberts; I.T.S.’s football

coach Robert Packer; co-worker Brian Schuller; and sister Hailee Beiler. The

Commonwealth presented two witnesses: Psychiatrist Dr. Neil Blumberg; and

Pennsylvania Department of Corrections’ counselor Amy Mottin.


____________________________________________


2   18 Pa.C.S.A. §§ 2501(a) and 3701(a)(1)(i), respectively.


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      In granting I.T.S.’s petition, the decertification court made the following

factual findings:

         At the time of the incident, [I.T.S.] had an active drug
         addiction issue. His substance abuse began at age 16.
         [I.T.S.] regularly abused marijuana, and experimented with
         other drugs, including LSD, cocaine, Xanax, MDMA,
         Klonopin, and Percocet. [I.T.S.] has never received drug
         and alcohol treatment. Except for the charging of the
         current offenses, [I.T.S.] has no juvenile or criminal record.
         As such, he has never received treatment, supervision, and
         rehabilitation available as dispositional alternatives under
         the Juvenile Act.       [I.T.S.] has a history of school
         misconducts, however, [he] does not have a history of
         violent behaviors.

                                     ***

         The Court finds the testimony of [the Commonwealth’s
         expert witness] Neil Blumberg, M.D., LLC, to be credible
         with regard to the existence of mental disorders, including
         the existence of “Other Specified Personality Disorder with
         Borderline, Narcissistic and Antisocial Features,” and that
         “there is little likelihood of a significant change in his
         personality structure in less than three years.” However,
         the Court is unable to determine the causal connection
         between this personality disorder and [I.T.S.’s] criminal
         behavior and/or risk of reoffending (as compared to the
         other six mental disorders found by Dr. Blumberg). This is
         especially true given the court’s finding with regard to
         [I.T.S.’s] level of culpability. Therefore, the Court will give
         this finding the appropriate weight.


         Given the findings above, [I.T.S.] is “amenable             to
         treatment, supervision or rehabilitation as a juvenile.”


See Trial Court’s Order, 8/30/17, at 2-4 (citation omitted).




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       The Commonwealth now presents us this timely appeal.3 Specifically,

the Commonwealth asks us to determine:

          I.     Whether the Decertification court erred in law and/or
                 committed a gross abuse of discretion in granting
                 I.T.S.’s Petition to Transfer the Case from Criminal
                 Proceedings to Juvenile Court Pursuant to 42
                 Pa.C.S.A. §6322 where I.T.S. failed to establish by a
                 preponderance of the evidence that transferring his
                 case to the juvenile division would serve the public
                 interest.

Commonwealth’s Brief at 4.

       The Commonwealth argues the trial court erred in determining that

I.T.S. met his burden at the hearing to warrant a transfer from criminal

division to juvenile court. Specifically, the Commonwealth points to the trial

court’s apparent acceptance of Dr. Blumberg’s conclusion that I.T.S. had little

chance of remedying his mental disorders by the time the child turned 21.

Conversely, the Commonwealth challenged the conclusion of defense expert,

Dr. Roberts, who surmised that I.T.S.’s issues were extensions from an

underlying drug addiction. Dr. Roberts testified that the addiction could be

remedied prior to the expiration of the juvenile court’s jurisdiction. For the

reasons that follow, we do not disturb the trial court’s determination that

decertification is appropriate.


____________________________________________


3The Commonwealth has certified that the trial court’s order will terminate
or substantially handicap the prosecution. See Pa.R.A.P. 311(d). Both the
Commonwealth and the trial court have complied with Pa.R.A.P. 1925.


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      Our standard of review is well settled:

         Decisions of whether to grant decertification will not be
         overturned absent a gross abuse of discretion. An abuse of
         discretion is not merely an error of judgment but involves
         misapplication or overriding of the law or the exercise of a
         manifestly unreasonable judgment passed upon partiality,
         prejudice or ill will.

Commonwealth v. L.P., 137 A.3d 629, 635 (Pa. Super. 2016) (citing

Commonwealth v. Ruffin, 10 A.3d 336, 338 (Pa. Super. 2010)). Pursuant

to 42 Pa.C.S.A. § 6322(a) and § 6355(e), when a juvenile has been charged

with murder or a crime listed under paragraph 2(ii) or (iii) of the definition of

“delinquent act” in 42 Pa.C.S.A. § 6302, the criminal division of the Court of

Common Pleas is vested with jurisdiction.            Id. Like murder, criminal

conspiracy to commit robbery – inflict serious bodily injury is also an offense

that requires jurisdiction to vest in the criminal division. 42 Pa.C.S.A. § 6302.

However, when jurisdiction vests with the criminal division under Section

6302, the juvenile may seek a transfer to the juvenile system through the

process of decertification. Id. (citing Ruffin, 10 A.3d at 338.) “In determining

whether to transfer a case charging murder or any offense excluded from the

definition of ‘delinquent act’ in section 6302, the child shall be required to

establish by a preponderance of the evidence that the transfer will serve the

public interest.” 42 Pa.C.S.A. § 6322(a). To assess whether a transfer will

serve the public interest, the court considers the factors in Section

6355(a)(4)(iii). Id.

      Section 6355(a)(4)(iii) provides as follows.


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         (iii) ... In determining whether the public interest can be
         served, the court shall consider the following factors:

            (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 system; and

            (G) whether the child is amenable to treatment,
            supervision or rehabilitation as a juvenile by
            considering the following factors:

               (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).

      This Court has further provided that:

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          Although the Juvenile Act requires that a decertification
          court consider all of the amenability factors, it is silent as to
          the weight that should be assessed to each factor. The
          ultimate decision of whether to certify a minor to stand trial
          as an adult is within the sole discretion of the decertification
          court. A decertification court must consider all the factors
          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.

L.P., 137 A.3d at 635-36 (citing Ruffin, 10 A.3d at 339) (some citations

omitted).

       In the present matter, largely undisputed are those facts pertaining to

Section 6355(a)(4)(iii)(A)–(F), which take into consideration matters other

than the juvenile’s amenability to treatment. The decertification court found

that the crime, which resulted in two deaths, to be of the gravest impact on

the victims and the community. See Trial Court’s Order, 8/30/17, at 1-2. The

court found that although I.T.S. facilitated the meeting between the co-

defendants and the victim, I.T.S. fled at the first moment of violence.        As

such, he is not culpable for the infliction of physical harm that caused the

victims’ deaths.4 Id. The court noted that I.T.S. had no previous criminal or

juvenile record.     Id. The court heard testimony that I.T.S. could receive

treatment and be housed with age appropriate peers in either the adult or the

juvenile system.

       The crux of the decertification decision – and thus the crux of this appeal

– hinges on the amenability analysis of Section 6355(a)(4)(iii)(G)(I) – (IX).
____________________________________________


4The decertification court was careful not to comment on whether I.T.S.
might be “legally culpable” for the death.

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Notably, within these subsections, still more facts are uncontested. I.T.S. was

17 years, 218 days old at the time of the incident. He had no prior criminal

record. The court found that I.T.S. possessed at least average intelligence

and is average to above-average in maturity.          He possessed the criminal

sophistication to buy and use illicit drugs.

         The   main   issue    for   the     trial   court   concerned     Section

6355(a)(4)(iii)(G)(VII): whether I.T.S. could be rehabilitated prior to the

expiration of the juvenile court’s jurisdiction, i.e. before he turns 21 years old.

At the date of the decertification order, the juvenile court’s jurisdiction would

last approximately 2 years and 205 days, pursuant to the Juvenile Act, 42

Pa.C.S.A. §6301, et seq.

         The amenability question can only be answered by first determining

what treatment I.T.S. needs. The experts provided differing opinions on this

issue.     Dr. Blumberg, the Commonwealth’s expert, testified that I.T.S.

possessed maladaptive traits that led to the impairment of social functioning.

See N.T., 8/16/17, at 79. He explained that these interpersonal difficulties

led to the child’s use of drugs, rebellion toward authority, impulsive behavior,

lying and cheating in school. Id. Dr. Blumberg concluded that this antisocial

behavior caused him to make a diagnosis of a personality disorder. Id. at 80.

Critically, Dr. Blumberg testified that I.T.S. could not be successfully treated

for a personality disorder within the requisite time, and that assumes the

personality disorder can be successfully treated at all. Id. at 87.




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      On the other hand, I.T.S.’s expert, Dr. Roberts, believed that I.T.S.

could be successfully treated within the statutory period.        Although Dr.

Blumberg argued that I.T.S. antisocial traits led to, or at least included, his

criminal drug behavior, Dr. Roberts concluded that the antisocial traits are the

results of I.T.S.’s drug abuse. Id. at 17-18. For Dr. Roberts, I.T.S.’s use of

drugs from a relatively early age was another reason why he disagreed with

Dr. Blumberg’s diagnosis of a hard-to-treat personality disorder. Id. at 18.

Dr. Roberts testified that because I.T.S. does not have a history of violence,

aggression or even a temper, Dr. Roberts was left to believe that I.T.S.’s

antisocial traits – e.g., disobeying his curfew, slacking off in school – can be

framed as an outgrowth from the underlying substance abuse issue. Id. at

19; 126. Dr. Roberts testified further that juveniles with substance abuse

issues have a good success rates when the juvenile shows motivation to

improve.   Id.   In his opinion, I.T.S. possesses the requisite motivation to

change. Id.

      Likewise, the experts also opined on I.T.S.’s level of capability and risk

to the community. Dr. Roberts testified that I.T.S.’s fleeing at the first sign

of violence spoke to his capability – or lack thereof – to cause harm to others

or the community.    Id. at 25.   Even Dr. Blumberg acknowledged that the

determination of whether I.T.S. is amenable to treatment necessarily depends

on which set of facts the court believes. Id. at 86. He explained that if the

court believed that I.T.S. was an unwitting participant to the murders, then

perhaps the juvenile system would be the reasonable forum. However, if the

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court believed I.T.S. was much more involved in the crime, and knew it might

involve violence, then he would present a more pathological disorder, the

treatment of which would not be successful in the juvenile system. Id. at 83;

86.

      The answers to these questions are squarely in the purview of the fact-

finder. Moreover, once the facts are found, it is up to the trial decertification

court to assign them weight. L.P., supra. Indeed, the trial court concluded

that I.T.S.’s antisocial traits were indicative of a borderline personality

disorder, which suggests that I.T.S. would be unlikely to change in less than

three years. See Trial Court’s Order, 8/30/17, at 3. However, the court was

not persuaded that I.T.S.’s personality disorder led to any past or present

criminal behavior. In fact, as the court noted, I.T.S. had no prior criminal

record and no history of violence. Id. Rather, the court noted I.T.S.’s rather

substantial drug abuse which started at a young age and was never treated;

led to his involvement in this criminal case. The court further believed that

I.T.S. could be treated for his drug abuse within the time frame of the juvenile

court’s jurisdiction. Id. Given these considerations, combined with the court’s

thorough analysis regarding the other Section 6355 factors, we discern no

gross abuse of discretion.      We therefore affirm the trial court’s order

transferring I.T.S.’s case to juvenile court.


      Order affirmed.

      Judge Lazarus joins this Memorandum.
      P.J.E. Stevens files a Concurring Memorandum.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2018




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