J-A13021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAMIE LYNN SILVONEK                        :
                                               :
                      Appellant                :   No. 818 EDA 2016

            Appeal from the Judgment of Sentence February 11, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002141-2015


BEFORE:      LAZARUS, J., OTT, J. and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                  FILED AUGUST 09, 2017

        Jamie Lynn Silvonek appeals from the judgment of sentence imposed

on February 11, 2016, in the Court of Common Pleas of Lehigh County,

following her entry into a negotiated guilty plea to first-degree murder and

related charges. Silvonek, a 14-year-old at the time of the crime, and her

20-year-old boyfriend, Caleb Barnes, killed Silvonek’s mother, who had

attempted to put an end to their relationship.           Prior to the guilty plea,

Silvonek petitioned the court to have her case decertified so that she could

be adjudicated in juvenile court. Following a two-day hearing, the trial court

denied Silvonek’s motion to transfer.          She subsequently entered into the

negotiated guilty plea mentioned above and was sentenced to 35 years’


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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incarceration to life, as agreed. In this timely appeal, Silvonek claims the

trial court erred in denying her petition to transfer to juvenile court by

requiring her to self-incriminate to demonstrate her ability to rehabilitate,

misapplying several of the statutory factors, and in basing its determination

on bias, prejudice, and/or ill will. After a thorough review of the submissions

by the parties, the certified record, and relevant law, we affirm.

      Pursuant to statute, murder is exempt from classification as a

delinquent act. See 42 Pa.C.S. § 6302, definition of “Delinquent act (2)(i).”

Accordingly, pursuant to 42 Pa.C.S. § 6322, a juvenile charged with murder

must petition the trial court for transfer to the juvenile system. In order to

prevail, the juvenile has the burden to prove by a preponderance of the

evidence that the transfer will serve the public interest. See 42 Pa.C.S. §

6322. This determination, in turn, is made by the trial court by considering

the factors listed in section 6355(a)(4)(iii). Those factors are:

      (iii) that there are reasonable grounds to believe that the public
      interest is served by the transfer of the case for criminal
      prosecution. 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;


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         (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:

            (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. § 6355(a)(4)(iii).

      Our standard of review is as follows:

      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 the
      misapplication or overriding of the law or the exercise of a
      manifestly unreasonable judgment passed upon partiality,
      prejudice or ill will.




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

omitted).

        The underlying facts of this matter are particularly important to the

disposition of this matter and must be understood to provide the needed

context to the trial court’s determination and our ruling.        The trial court

clearly understood this necessity and provided approximately 22 pages

detailing the factual underpinnings of this matricide.1      We rely upon this

recitation of the facts and direct the parties to attach a copy of the trial court

opinion in the event of further proceedings.

        Here, we simply note that Silvonek was the instigator and willing

participant in the murder of her mother,2 who was standing in the way of a

continuing sexual relationship between Silvonek and her adult boyfriend,

Caleb Barnes, a soldier stationed at Fort Meade, Maryland.




____________________________________________


1
    See Trial Court Opinion, 11/19/2015, at 2-24.
2
  Texts from Silvonek to Barnes on the day they killed her mother capture
the essence of this. 1) “She needs to go, Caleb. Right now. You don’t
understand”; 2) “CALEB” “I’M SERIOUS” “She’s lying” [about Silvonek’s age]
“Please do it, I’m going to throw up” “I can’t stand her lying to you like this”;
3) “I don’t know what her problem is” “She threatened to throw me out of
the house. I want her gone.”; 4) “I just need to you be able [sic] to come
over so we can do whatever necessary, honestly”; 5) “I want her to shut her
fucking face and stop being fake. She just God damn lied to you about my
age and now she’s pulling this shit.”         See Commonwealth Exhibit 8,
10/29/2015, Texts, 3/14/2015.



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      Silvonek’s first argument is that the trial court abused its discretion

denying decertification by violating Silvonek’s fifth amendment right against

self-incrimination. One of the statutory factors for the trial court to consider

is amenability to treatment in the juvenile system. Case law demonstrates

that a component of that determination can be whether the juvenile takes

responsibility for his or her actions.    While taking responsibility may be

considered, the court cannot require the juvenile to admit to guilt in order to

prove he or she has taken responsibility. See Commonwealth v. Brown,

26 A.3d 485 (Pa. Super. 2011). If the court does use the failure to admit

guilt to determine the juvenile is not amenable to rehabilitation, the

juvenile’s fifth amendment right against self-incrimination has been violated.

Id. Our review of the certified record shows that while the trial court did

consider Silvonek’s lack of acceptance of responsibility for her actions, it did

not require her to admit her crime. Rather, in its Pa.R.A.P. 1925(a) opinion,

the trial court credited forensic psychiatrist, John S. O’Brien, M.D., J.D., who

determined, “In [Silvonek’s] version, she ‘minimize[d] her problems and

overlook[ed] personal fault,’ by ‘continuing to distance herself from any

responsibility for the offense.’” Trial Court Opinion, 11/19/2015, at 31-32.

      The foregoing was not a statement faulting Silvonek for her failure to

admit to her crime.    Instead, this comment is part of larger commentary

indicating Silvonek, even at her young age, had become an adept liar and

emotional manipulator of those around her. In using these traits, she was

attempting to avoid responsibility and consequences of her actions. Indeed,

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the record reflects Silvonek has been described by those around her as a

“chameleon”, id. at 29, “socially savvy”, “a psychological bully”, and a

“manipulator”. Id. at 32. Additionally, the record is replete with instances

where Silvonek changed her story and attitude in response to her situation.

The video of Silvonek’s voluntary interview with the police, immediately after

she was taken into custody, is ample demonstration such behavior.3

       In reviewing the entire record, it is clear that the determination that

Silvonek avoided responsibility of her actions was not based upon her failure

to admit guilt.     She did, in fact, admit to certain aspects of her criminal

behavior in the police interview.          Specifically, she admitted to minimally

helping Barnes dispose of her mother’s body.           Our review of the certified

record, in toto, confirms that the trial court’s determination that Silvonek’s

failure to accept responsibility for her actions was not based upon a refusal

to admit guilt.      Rather, the determination was based upon her actions

viewed in their entirety. Silvonek is not entitled to relief in this issue.

       Next, Silvonek argues the trial court improperly considered certain of

the required factors in denying her motion for decertification.        She claims

the trial court considered her age and her relationship with co-defendant,


____________________________________________


3
  Particularly relevant to this issue, we note: 1) how Silvonek attempted to
blame a friend of hers, Witness One, for giving Barnes the idea of killing her
parents, and 2) how Silvonek claimed Barnes had forcibly raped her after
killing her mother. This court has viewed the interview, as well as all other
available video evidence, in its entirety.



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Caleb Barnes, as aggravating factors rather than as mitigating factors.

Specifically, she claims, “The trial court failed to consider the inherent

coerciveness of Jamie Silvonek’s relationship with a twenty (20) year old co-

defendant when Jamie Silvonek had not reached the age of consent and had

just turned fourteen (14) years old.”      Appellant’s Brief at 24.   While the

certified record does reflect expert testimony was presented to support this

theory, specifically the testimony of Dr. Frank Dattilio, Ph.D., and Dr. Steven

Berkowitz, M.D., the trial court considered the testimonial evidence of both

experts and rejected them.       The trial court reasoned that the primary

foundation of Dr. Dattilio’s opinion was admittedly based upon Silvonek’s

“unreliable recounting and version of events.”      Trial Court Opinion at 27.

The trial court further stated, regarding Dr. Dattilio’s reliance on Silvonek’s

version of the events:

      Indeed, this Court recognizes that [Silvonek] has presented
      many different versions of the events, as they are constantly
      changing. Of prime importance, Dr. Dattilio based his opinion on
      the fact that [Silvonek] did not execute the killing of her mother,
      was surprised by the killing, and was an unwilling participant in
      it. However, [Silvonek’s] text messages between [her] and the
      Co-Defendant, the Walmart video (not reviewed by Dr. Dattilio),
      the Lehigh County Jail letter (not reviewed by Dr. Dattilio prior to
      preparing his report), as well as her telephone conversation with
      Co-Defendant in the presence of Witness Number One as
      recounted in the Preliminary Hearing testimony, undermine this
      assertion.

Id. at 27-28 (footnotes omitted).

      Dr. Berkowitz opined that due to Adolescent Brain Development,

Silvonek exhibited poor judgment and should not be held to the same legal


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standard as an adult. He further testified that Silvonek suffered from a non-

verbal learning disability. However, the trial court noted that although Dr.

Berkowitz interviewed Silvonek while she was in the Lehigh County Jail and

reviewed the battery of diagnostic assessments performed by Dr. Dattilio, he

did    not   review   Silvonek’s    school     records,   the   Walmart   video, 4   the

approximately 6,000 text messages between Silvonek and Barnes, the

psychiatric report of Dr. John F. Campion, M.D.5, the sexual assault report of

Dr. Debra Jenssen, M.D.,6 the social media sites used by Silvonek, and

without having interviewed any of Silvonek’s teachers.

____________________________________________


4
  The Walmart video is closed circuit video from the Walmart store Silvonek
and Barnes visited to buy cleaning supplies after they had killed Silvonek’s
mother and left her in the Silvonek vehicle in the driveway. The video
shows, in part, Silvonek and Barnes walking arm in arm; Silvonek pulling on
Barnes’ arm, directing him down a specific aisle; and Silvonek carrying a
bottle of what appears to be bleach, swinging it as if it were a sand pail at
the beach. The Lehigh County Jail letter was a note Silvonek attempted to
send to Barnes regarding her decertification hearing in which she asks him
to take the blame for her, claiming that if the situation was reversed, she
would “be on the stand at that hearing, taking the fall for you.” Trial Court
Opinion. 11/16/2015, at 28, fn. 14. In the letter, she further claims “…the
only hope of us ever being together is if I get sent back to Juvenile Court.
After 7 years I can move to wherever you are, and we can be together.” Id.
Finally, Witness One is the friend referred to earlier to whom Silvonek tried
to shift blame. The phone call was one between Silvonek and Barnes, in the
presence of Witness One, in which Silvonek suggested Barnes kill her
mother.
5
    Dr. Campion was Silvonek’s therapist prior to the murder.
6
  This report was generated after Silvonek, during her police interview,
accused Barnes of having forcibly raped her.




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       In light of the above, we see no abuse of discretion by the trial court in

rejecting these expert opinions.7 Rather, the trial court found the testimony

of John S. O’Brien, M.D., J.D., to have been credible. The trial court noted

that Dr. O’Brien had both interviewed Silvonek and thoroughly reviewed the

records:

       [Dr. O’Brien] found that [Silvonek] “seamlessly adjust[ed]” her
       story and provided multiple versions of what took place on the
       evening of March 14, 2015 and early morning hours of March 15,
       2015. In [Silvonek’s] version, she “minimize[d] her problems
       and overlook[ed] personal fault,” by “continuing to distance
       herself from any responsibility for the offense.” [Silvonek] was
       found to be “a good liar and had successfully lied on multiple
       occasions in order to get what she wanted.” She was seen by
       others in the community as being “socially savvy,” “a
       psychological bully” and a “manipulator.” Overall, [Silvonek]
       presented herself differently to different people in order to
       achieve her end goal. Indeed, during the course of her therapy
       with Dr. John Campion, [Silvonek] ironically was seen as having
       “a significant improvement in her symptoms” at a time when
       “her actual performance and participation in school activities
       deteriorated” and her relationship with her parents was
       contentious.

       Dr. O’Brien found [Silvonek] to be “a highly intelligent and
       manipulative young woman” who was not a “fearful or
       emotionally overpowered passive participant in the pre-planned,
       premeditated murder of her mother.” Dr. O’Brien concluded that
       [Silvonek] was “an individual who could size up her audience and
       behave in a manner that was consistent with their interests and
____________________________________________


7
  Although the trial court did note that Dr. Dattilio testified that if, contrary
to his belief, Silvonek did plot, encourage, and participate in the murder of
her mother, then then it would not be in the public interest to decertify.
Trial Court Opinion, 11/16/2015, at 30, fn. 15. As the trial court determined
Silvonek was the instigator and a willing participant in the killing, the trial
court accepted this aspect of Dr. Dattilio’s testimony.



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         their receptiveness to her            self-serving   and   ingratiating
         representation of herself.”

Id. at 31-32 (citations to the record omitted).

         The trial court accepted Dr. O’Brien’s expert testimony that Silvonek

was a manipulator, not manipulated. As noted, we have reviewed the video

evidence, read the expert reports and testimony, and reviewed the text

messages between Silvonek and Barnes and we find no abuse of discretion

in this determination. Accordingly, Silvonek is not entitled to relief on this

issue.

         The last factor Silvonek claims the trial court erred in analyzing was

the determination that juvenile dispositional alternatives were inadequate to

address both society’s and Silvonek’s needs and that Silvonek was an

unlikely candidate to be rehabilitated prior to the expiration of the juvenile

court jurisdiction.8 Here, the trial court considered the evidence that the two

programs available to Silvonek had never treated anyone for more than 2½

years, making it likely that Silvonek would be released from such program

well before her 21st birthday.          Given the extreme nature of the crime,

including her willing participation in it, as well as Silvonek’s general lack of

amenability for rehabilitation, the trial court reasoned:

         As such, this Court finds that the juvenile system is inadequate
         to supervise, treat or rehabilitate [Silvonek].       This Court
         recognizes that juvenile court jurisdiction ends at the age of
         twenty-one (21) regardless of whether or not [Silvonek]
____________________________________________


8
    The claim relates to the factors at 42 Pa.C.S. § 6355 (F) and (G)(vii).



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      continues to pose a threat to society. However, it is more likely
      than not that [Silvonek] would be released long before she
      attains the age of twenty-one (21) years old, as the treatment
      facilities are designed with a shorter duration of treatment in
      mind. A period of approximately two and a half (2½) years is
      woefully inadequate to expect that [Silvonek] would respond to
      treatment or rehabilitation after committing matricide.

      In contrast, within the adult system, a state correctional
      institution is available to [Silvonek] that would suit her needs.
      Specifically, SCI Muncy is a state correctional institution housing
      youthful female offenders younger than eighteen (18) years old,
      and young adult female offenders between the ages of eighteen
      (18) and twenty-one (21). The juvenile programing within the
      adult correctional system offered at SCI Muncy mirrors the
      programming for juvenile offenders offered at both North Central
      Secure Treatment Unit and Adelphoi Village. William Franz, the
      Correction Classification Program Manager and SCI Muncy,
      explained that the youthful offender and young adult prisoners
      are separated from the general prison population. The Youthful
      Offender Program offers a great deal of programs designed to be
      therapeutic in nature. The prisoners in this program meet with
      their counselors and psychologists daily, and overall there is [a]
      great deal of interaction with the staff. In this program, the
      prisoner would receive an education and be offered programs
      run by area Universities.       Under the Young Adult Offender
      Program, the prisoner undergoes a five (5) phase program, each
      phase lasting eight (8) weeks. A young adult prisoner would
      have the opportunity to participate in a myriad of programs
      which focus on, inter alia, positive relationships, coping skills,
      decision making and positive self-esteem. Mr. Franz indicated
      that the programs in SCI Muncy are similar to those offered at
      North Central Secure Treatment Unit in Danville, Pennsylvania.
      However, M. Franz noted that it is less chaotic at SCI Muncy
      because they have more options available to them to deal with
      rule breakers. Consequently, he believed SCI Muncy to be a
      placement that is more conducive to treatment.

Trial Court Opinion, at 35-36.

      This rationale belies Silvonek’s claims that the trial court based its

decision simply on the belief that as a juvenile offender Silvonek would be



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released in two and one-half years.       Contrary to Silvonek’s claims, we

believe the trial court engaged in a thoughtful analysis of this issue before

determining that Silvonek would be more appropriately served by the adult

correctional facilities.

      Finally, Silvonek argues the trial court abused its discretion by basing

its determination on partiality, prejudice or ill will.   Essentially, Silvonek

argues, “The lower court found [Silvonek] effectively guilty of all alleged

charges before a trial even commenced. Such findings clearly demonstrate

partiality, prejudice or ill will towards Juvenile Jamie Silvonek.” Appellant’ s

Brief at 29.

      We note that Silvonek has cited Commonwealth v Brown, 26 A.3d

485 (Pa. Super. 2011) favorably throughout her brief. As discussed above,

we have found Brown inapplicable under the facts of this case regarding

Silvonek’s self-incrimination claim.    However, the Brown decision also

states:

      Consistent with our discussion above permitting a psychiatrist to
      presume a juvenile’s guilt in determining amenability to
      treatment, we conclude that for purposes of analyzing the
      factors in § 6355(a)(4)(iii), a trial court may (but need not)
      assume that the juvenile is guilty and committed the alleged acts
      constituting the offense.

Commonwealth v. Brown, 26 A.3d at 508.

      Case law specifically permits the trial court to presume the juvenile’s

guilt when considering decertification.       Accordingly, this argument is

unavailing.


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      Our review of this matter convinces us that this is an extraordinary

case. Jamie Lynn Silvonek was still a young teenager when she conspired

with her 20 year old boyfriend to murder her mother in order to continue

their relationship.   Nonetheless, the trial court carefully considered the

totality of the evidence and applied the facts to the statutory factors listed at

42 Pa.C.S. § 6355(a)(4)(iii). In doing so, the trial court determined, despite

her age, Silvonek was not amenable to rehabilitation in the juvenile system

and that the adult system would be better able to provide her with the help

she requires. Accordingly, the trial court found that Silvonek had not carried

her burden to prove that a transfer to the juvenile system would serve the

public interest.   Our comprehensive review of the certified record in this

matter confirms that the trial court did not abuse its discretion in denying

Silvonek’s motion to transfer to juvenile court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2017




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