J-S75029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.B., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: A.B., A MINOR

                                                     No. 1093 EDA 2014


              Appeal from the Dispositional Order March 7, 2014
            In the Court of Common Pleas of Philadelphia County
             Juvenile Division at No(s): CP-51-JV-0004814-2012


IN THE INTEREST OF: A.B., A MINOR               IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA




APPEAL OF: A.B., A MINOR

                                                No. 1094 EDA 2014


              Appeal from the Dispositional Order March 7, 2014
            In the Court of Common Pleas of Philadelphia County
             Juvenile Division at No(s): CP-51-JV-0004815-2012


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

DISSENTING MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 23, 2014

      I respectfully dissent.   Recognizing the broad discretion granted to

juvenile courts in fashioning dispositions, the instant case does not represent

a manifest abuse of discretion where Judge Dougherty carefully considered

the testimony presented by the Commonwealth and defense and determined
J-S75029-14



that   out-of-home    placement     was     absolutely   necessary   for   A.B.’s

rehabilitation in light of his transgressions and past history.       The court

concluded that, based on the testimony, placement in a state facility was

consistent with the protection of the public as well as A.B.’s needs.         42

Pa.C.S.A. § 6301.     While A.B. is undoubtedly an intelligent young man,

probation has not been the rehabilitative solution to curb his transgressions.

       At A.B.’s revocation hearing, A.B.’s probation officer, Juan Rodriguez,

testified that since receiving the case, A.B. has tested positive for drugs one

time, he has been truant from school, had a summary arrest for jumping a

subway turnstile, and has had curfew issues.         N.T. Probation Revocation

Hearing, 3/7/2014, at 3.       Despite these issues, Officer Rodriguez also

testified that A.B. is extremely gifted, receives all A’s and B’s in high school,

and has tested negative for all substances after the January 2014 positive

test. Id. The Officer recommended that he be placed on G.P.S. with area

restrictions, attend school with no unexcused absences or lateness, and be

subject to random drug screenings. Id. at 5.

       Police Officer Matthew York, of the South Gang Task Force, testified at

the revocation hearing that he had identified A.B. as being part of a gang.

Id. at 8.   Specifically, Officer York personally observed A.B. consistently

hanging out with gang members, was present when A.B. filmed a rap video

promoting gang violence, and stated that A.B. is self-identified on social

media as a “Jungle Boy,” one of the violent gang factions in the area of 27 th

Street in the South Division. Id. at 8-9.

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      At the revocation hearing, the juvenile judge gave A.B. the opportunity

to take responsibility for his missteps and admit his association with gang

members. However, not only did A.B. deny his involvement in the burglary

and RSP for which he had been originally convicted, but he testified that he

had never been a part of any gang.      In response to his dishonesty in the

presence of the court, the juvenile judge stated:

      You have already been convicted of [burglary and RSP]. That is
      over and done with. And the fact that you keep lying to me,
      after somebody heard your story, and convicted you, only proves
      to me that I have to keep you locked up for a long time.

      Here’s the deal, I have been trying to be nothing but honest and
      straight with you, and I have given you every opportunity. You
      have done nothing but lie to me. And I just opened the door and
      you had to say that you weren’t there, after you just heard that
      you were convicted of it and that is what you are in front of me
      for. Not a problem. I’ve heard enough.

      Commit to the State for secure placement. You are going to
      learn. You are a very intelligent guy but it is not going to be
      used for corruption, crime or injury. You had the opportunity to
      walk the straight and narrow. The first person you bumped into
      was me. And now, I am taking you off the streets and I am
      placing you in the most secure facility I have for juveniles.

      Now, so you understand, I could put you away for four years. I
      will work that down depending on how well you behave, how
      good [sic] you do in school and how you decide to change your
      mind. But more importantly, it is going to start with your
      honesty. All you had to do was tell me for real. You disrespect
      your sister, you disrespect your Grandfather, in front of them in
      a packed courtroom.

N.T. Probation Revocation Hearing, 3/7/14, at 20-21 (emphasis added).

      It is well established that the hearing judge sits as the finder of fact,

In the Interest of D.S. 37 A.3d 1202 (Pa. Super. 2011), and the weight to


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J-S75029-14



be assigned the testimony of the witnesses is within the exclusive province

of the fact finder.     Id.     In that regard, Judge Dougherty demonstrated

awareness     of   A.B.’s    prior    history   (including    treatment,   supervision,

rehabilitation and welfare), received detailed information regarding A.B.’s

prior criminal conviction leading to his probationary sentence, heard

sufficient testimony upon which to make an informed and reasoned

probation violation sentencing decision, and observed first-hand A.B.’s

unwillingness to be honest with the court.

      While the majority correctly acknowledges that the juvenile court had

“available    various       options     for     Appellant’s    disposition,”   Majority

Memorandum, at 13, the court was more than clear that it would “work

down” A.B.’s juvenile placement based upon his behavior, performance in

school and honesty. N.T. Probation Revocation Hearing, 3/7/14, at 20-21.

A.B. had been adjudicated delinquent for RSP, conspiracy and burglary;

probation simply did not rehabilitate him.           Accordingly, I would affirm the

trial court’s dispositional order revoking A.B.’s probation and committing him

to a state juvenile facility.




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