J-A30030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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
____________________________________________


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.




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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



____________________________________________


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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