J-A03021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

TYSEER JAMES GATES

                          Appellee                      No. 240 MDA 2016


               Appeal from the Order Entered January 14, 2016
              In the Court of Common Pleas of Lycoming County
               Criminal Division at No: CP-41-CR-0001358-2015


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                              FILED APRIL 12, 2017

        The Commonwealth of Pennsylvania appeals from the January 14,

2016 order of the Court of Common Pleas of Lycoming County (“trial court”),

which    granted   Appellee   Tyseer   James   Gates’   (“Gates”)   petition   for

decertification. Upon review, we affirm.

        On June 24, 2015, Agent Raymond Kontz III, Williamsport Police

Department, charged Gates with various crimes in connection with armed

robberies that occurred on June 23, 2015 and June 24, 2015, respectively.

As reproduced verbatim here, the affidavit of probable cause accompanying

the complaint provides:

        On 6/23/15 the Williamsport Bureau of Police responded to 1037
        High Street Williamsport, PA 17701 at approximately 2:30 am
        for a report of an armed robbery that had just occurred. Police
        responding into area were given the description of black male
        suspect as wearing a white t-shirt around his face and green
        sneakers.
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           Review of the video surveillance system showed that a
     black male was outside the store starting at approximately 1:30
     am and that upon his arrival he was with a white male. The
     black male, identified as [Gates,] was carrying a white t-shirt in
     his hand and the white male, identified as Shon Edward Helm,
     had a camo style mask around his neck. They are seen watching
     the store for about an hour and then leaving jumping a fence on
     the south side of the Uni-Mart.

           Video shows that Gates re-appears coming through the
     parking lot on the west side of the store with his head wrapped
     in the white t-shirt, with the same green sneakers on, carrying a
     long barreled rifle. Gates steps into the store pointing the rifle
     at the clerk and demanding the stores money. The clerk tells
     Gates that he is on video and will comply with his orders to
     which Gates tells the clerk that he didn’t care because he was
     wearing a mask.

            Helm is seen outside in the parking lot pacing and
     watching out as Gates robs the store. Both flee west on High
     Street. Later that morning police do recover the t-shirt that was
     used as a mask in this incident by Gates along with the camo
     mask being used by Helm with additional clothing as well as the
     rifle. The rifle did turn out to be an “Air Pump BB-Gun.”

            Officers [were advised] to be looking for Gates and if they
     did find him that [Agent Kontz] wish[ed] to speak with [Gates]
     about this robbery.

           On 6/24/2015 at approximately 2:49 am the Williamsport
     Bureau of Police responded to Nittany Minit Mart 2300 W 4 th
     Street Williamsport, PA 17701 for a report of a robbery that had
     just occurred by a black male with a black t-shirt wrapped
     around his face using it as a mask. The suspect was carrying a
     black revolver at the time of this robbery.

           [Police Officer] Hagan was in the area looking for possible
     suspects when he located Gates in the parking lot of the Dunkin
     Donuts located at W 4th and Arch Streets. PO Hagan exited his
     vehicle making contact with Gates and when Gates offered to sit
     in the police car PO Hagan asked him if he had any weapons on
     his [person] at this time. As PO Hagan attempted to pat down
     Gates he smacked at PO Hagan’s hands attempting to stop him.



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            PO Hagan did feel and immediately recognized an item
      that was in Gates waistband as a handgun and did place Gates
      into handcuffs retrieving the weapon which was concealed upon
      his persons. PO Hagan did also discover a sum of money from
      Gates back pocket which included a $5.00 bill with a smiley face
      drawn on it which the clerk did describe to police.

            Interviews with [a] 13 year old juvenile indicated that
      Gates and Helm had asked him to assist in the robbery of
      Nittany Minit Mart Store and he was promised ½ the money that
      was taken. Through this investigation and interview with both
      Gates and Helm it was also learned that Gates and Helm planned
      the robbery of two different stores for the morning, the Nittany
      Minit Mart and the Dunkin Donut store both located in the
      Newberry section of the city. These robberies were supposed to
      happen nearly at the same time to distract and overwhelm police
      resources as to make it easier to get away with both of the
      robberies.

            Gates did rob the Nittany Minit Mart with his 13 year old
      juvenile accomplice.    Helm, along with his 12 year old
      accomplice, went to the donut shop carrying a second black
      revolver style BB-Gun which he concealed on his persons, but
      decided not to rob the store because there were too many
      people.

Affidavit of Probable Cause, 6/24/15. Gates waived his preliminary hearing

and the charges were held for trial. On September 23, 2015, Gates filed a

decertification motion, seeking a transfer to the juvenile court.

      On December 21, 2015, the trial court conducted a hearing on the

decertification petition, following which it granted Gates’ motion to decertify,

transferring the case to the juvenile court. In so doing, the trial court found

that Gates was amenable to treatment and that to deny him treatment

would not serve the public interest because Gates previously was “never

afforded an opportunity to be treated through available resources designed



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J-A03021-17



to address juvenile criminal behaviors.” Trial Court Opinion, 1/14/16, at 13-

14. The Commonwealth timely appealed.1

       On appeal, the Commonwealth argues only that the trial court grossly

abused its discretion in transferring Gates’ case to the juvenile court.2

Specifically, the Commonwealth challenges the trial court’s conclusion

pertaining to the last decertification factor, i.e., “whether a child is amenable

to   treatment,     supervision     or    rehabilitation   as   a   juvenile[.]”   42

Pa.C.S.A. § 6355(a)(4)(iii)(G).          The Commonwealth points out that the

record does not support the trial court’s conclusion that Gates is amenable

to treatment.3



____________________________________________


1
  In response to the Commonwealth’s Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion
largely incorporating its opinion granting Gates’ decertification motion.
2
  To the extent the Commonwealth argues that Gates failed to carry his
burden of proof because he did not proffer expert testimony in support of
decertification, such argument is waived because the Commonwealth failed
to raise it before the trial court or in its Pa.R.A.P. 1925(b) statement. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal”); Commonwealth v.
Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007) (noting that “new
theories ordinarily cannot be raised for the first time on appeal[.]”); see
also Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)
s]tatement . . . are waived”).
3
  The Commonwealth does not challenge the trial court’s factual findings. Its
argument assails only the trial court’s legal conclusion with respect to the
final decertification factor of Section 6355(a)(4)(iii) of the Juvenile Act
(“Act”).



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       At the outset, we observe that the trial court’s interlocutory order

transferring Gates’ case from the criminal court to the juvenile court is

immediately appealable by the Commonwealth.          See In the Interest of

McCord, 664 A.2d 1046, 1048 n.2, 1049 (Pa. Super. 1995) (stating that “a

transfer order adverse to the Commonwealth, while not ‘a final decision of

the whole controversy,’ is, in effect, a final decision regarding the propriety

of prosecuting the juvenile as an adult[,]” and such an order, therefore, “is

an interlocutory order which is immediately appealable.”).

       With this in mind, we review a trial court’s grant of a motion for

decertification for a gross abuse of discretion.4    See Commonwealth v.

L.P., 137 A.3d 629, 635 (Pa. Super. 2016) (citation omitted) (“[D]ecisions

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.” Id.

       Pursuant to 42 Pa.C.S.A. § 6322(a) [of the Act], when a juvenile
       has committed a crime, which includes murder, or any of the
       other offenses 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.
       Likewise, 42 Pa.C.S.A. § 6355(e) explains that charges of
____________________________________________


4
  The issue of certification between the juvenile and criminal divisions is
jurisdictional and, therefore, not waivable. Commonwealth v. Johnson,
669 A.2d 315, 320-321 (Pa. 1995).



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J-A03021-17


      murder, or any of the other offenses listed under paragraph
      (2)(ii) or (iii) of the definition of “delinquent act” in 42 Pa.C.S.A.
      § 6302, requires that the offense be prosecuted in the criminal
      division. “Robbery,” when committed with a deadly weapon, is
      one of the offenses listed which requires jurisdiction to vest in
      the criminal division. 42 Pa.C.S.A. § 6302.

      When a case goes directly to criminal division, the juvenile has
      the option of requesting treatment within the juvenile system
      through      a     transfer     process      of    “decertification.”
      [Commonwealth v.] Aziz, 724 A.2d [371,] 373 [(Pa. Super.
      1999)]. In determining whether to transfer such a case from
      criminal division to juvenile division, “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). See
      also Aziz, 724 A.2d at 373.

Commonwealth. v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003),

appeal denied, 827 A.2d 430 (Pa. 2003).

      In determining whether the child has established that the transfer will

serve the public interest, the trial court must consider the factors set forth in

Section 6355(a)(4)(iii) of the Act.     See 42 Pa.C.S.A. § 6322(a).            These

factors are as follows:

   (4) The court finds:

      ....

      (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;




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        (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:

           (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) (emphasis added).            As the foregoing
illustrates,

     [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 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

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J-A03021-17


       petition must be denied and jurisdiction remains with the
       criminal division.

Commonwealth v. Brown, 26 A.3d 485, 492-93 (Pa. Super. 2011)

(internal citations and quotation marks omitted).

       Although it requires a trial court to consider all of these factors, the

Act is silent on the weight assessed to each by the court, as “[t]he ultimate

decision of whether to certify a minor to stand trial as an adult is within the

sole discretion of the [trial] court.” Id.; see Sanders, 814 A.2d at 1251 (“A

decertification court must consider all of the factors set forth in Section 6355

of the Act, but it need not address, seriatim, the applicability and importance

of each factor and fact in reaching its final determination.”).    Finally, “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.” L.P., 137 A.3d at 636 (citation omitted).

       In this case, as mentioned earlier, the Commonwealth challenges only

the trial court’s conclusion with respect to the amenability to treatment

factor of Section 6355(a)(4)(iii) of the Act. 5   Based on the uncontradicted

evidence of record and our narrow standard of review, we are constrained to

agree with the trial court’s conclusion to grant Gates’ decertification motion.
____________________________________________


5
 Here, it is undisputed that Gates was charged with an offense that properly
vested jurisdiction in the criminal court. Specifically, he was charged in
connection with armed robberies. Under Section 6302 of the Act, robbery
with a deadly weapon is excluded from the definition of “delinquent act.”
See 42 Pa.C.S.A. § 6302.




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J-A03021-17



The trial court concluded that, with the exception of the final decertification

factor,   all   other   factors   of   Section   6355(a)(4)(iii)   favored   the

Commonwealth. With respect to the final factor pertaining to amenability to

treatment or rehabilitation, the trial court concluded that it favored Gates

because, to the extent he received services in the past, he “did well.” Trial

Court Opinion, 1/13/16, at 9. Seemingly in the alternative, the trial court

concluded that, even if the final factor did not favor Gates, it certainly did

not favor the Commonwealth. The trial court noted that the record reveals

that Gates received a dearth of prior interventional care or treatment

services tailored to address his behavioral needs. Indeed, as the trial court

reasoned:

             On the date the incidents occurred, [Gates] was 16 years
      old. ([N.T. Hearing, 12/21/15, at 11 ]). The firearms that were
      utilized in the crimes were both BB guns. ([Id.]).

            For four to six months prior to [Gates] committing the
      offenses, he had been living in the area by himself. He was
      essentially taking care of himself. His mother was out of state.
      ([Id. at] 12, 17).

            The Lycoming County Juvenile Probation Office (“JPO”) first
      came in contact with [Gates’] case in February of 2013. He was
      adjudicated delinquent in Virginia and the case was transferred
      to Pennsylvania. Lycoming County JPO picked up supervision in
      August of 2013 when [Gates] was 14 years old. ([Id. at 22-
      24]).

            Because the case was transferred through the Interstate
      Compact and Lycoming County was doing courtesy supervision,
      Lycoming County “didn’t put a whole lot in place.” ([Id. at] 24).
      While community service and in-home counseling was apparently
      requested, there was no evidence that the community service
      was put in place or that in-home counseling was provided. ([Id.
      at] 25).

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J-A03021-17


           In December of 2013, [Gates] was placed in secured
     detention in Tioga County for an alleged assault.          He
     subsequently made a counseled admission to terroristic threats
     and simple assault. He was adjudicated delinquent. He was at
     Tioga County from December 16, 2013 to December 26, 2013.

           As a result of his adjudication, he was placed on house
     arrest from the date he was released to February 27, 2014.

           He was released from house arrest. He was required to
     perform community service. A mental health evaluation was
     conducted. They gave [Gates] a diagnosis of Conduct Disorder
     and ADHD. ([Id. at] 27, 28).

          According to the evaluator, “there wasn’t a need for any
     counseling because [Gates] essentially had ADHD and a
     conduct disorder.” ([Id. at] 45).

           [Gates] was released from supervision on July 7, 2014. In
     sum, up to this point, [Gates] was not provided with any
     services whatsoever to address his behaviors or underlying
     diagnosis. He was sanctioned via community service, in-home
     detention and a very brief stay at a detention facility.

            [Gates] came back on supervision in November of 2014
     after being adjudicated on a retail theft charge. He was directed
     to perform 24 hours of community services, pay court costs and
     restitution. ([Id. at] 29, 30).

           From November 12, 2014 until [Gates’] case was closed in
     February of 2015, [Gates] remained on juvenile probation
     supervision. During this brief period of time, JPO worked with
     the family trying to address some of their basic needs such as
     heating and furniture. JPO also tried to get [Gates] involved in
     extracurricular sports activities including martial arts. ([Id. at]
     30).

           [Gates’] mother, however, indicated that her illness had
     gotten worse and that she was moving to Delaware. As a result,
     JPO “expedited” [Gates’] conditions of probation by giving him
     some extra community service. ([Id. at] 31-32).           [Gates]
     allegedly moved back to Delaware on January 29, 2015 and the
     case was officially closed on February 18, 2015. ([Id.]).




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J-A03021-17


            In sum, by the time [Gates] was released from juvenile
     supervision, the only services provided to him by the JPO were
     increased community service, intensive contact with his adult
     probation officer (multiple times a week), and extracurricular
     activities including track and martial arts. ([Id. at] 40, 45).

           The JPO admitted, however, that once they were informed
     that he was returning to Delaware, they “were not going to
     put in a whole lot of time, energy and resources.” ([Id. at]
     49). Specifically, they were not going to place [Gates] in any
     external community based services. ([Id.]).

          In fact, had [Gates] stayed in the area with his
     mother, JPO would have started community based
     treatment including MST, family based counseling and
     after school services.  Furthermore, they would have
     considered either Northwestern Human Services or the
     Abraxas Habitual Offender Programs. ([Id. at] 49, 51).

           In fact, there were numerous services and/or placements
     that could have been utilized to address [Gates’] behaviors. For
     example, [Gates] could have been placed at Abraxas,
     Northwestern or even the Youth Development Center. ([Id. at]
     33-34). Those placements are in secure facilities, and include
     work programs, education, aggression replacement therapy and
     programs aimed at reducing recidivism. ([Id. at] 34-35).
     [Gates] was never given an opportunity to engage in any
     therapy whatsoever. He was never given the opportunity to
     attend a day treatment program or even a victim impact
     panel. ([Id. at] 37, 48).

           Unfortunately, in this particular case, the circumstances of
     what was happening in his life with his family essentially dictated
     what JPO did or did not do. JPO “just kind of” watched it and
     there “wasn’t a whole lot in place.” ([Id. at] 48).

          Finally, and perhaps most disturbingly, it appears that
     both JPO and the Commonwealth are advocating that
     [Gates] remain in the adult criminal system because
     neither wishes to spend the time, energy or resources in
     rehabilitating him.

           Even though JPO would expect [Gates] to have trouble
     adjusting to a juvenile facility after being housed in the county


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J-A03021-17


      prison, this is not something entirely unusual and placement and
      programming could be lengthened or increased. ([Id. at] 51).

      ....

             In sum, due to [Gates’] family circumstances, [Gates] has
      been attempting to survive on his own.               Those same
      circumstances have resulted in him receiving very little services
      and programs to assist him or rehabilitate him. Although he
      has been in the juvenile system, up until this point he has
      not received or even been offered the juvenile programs
      and services that he needs. Due to his family’s moves
      between Virginia, Pennsylvania and Delaware, [Gates] has fallen
      through the cracks. Apparently, the Commonwealth is willing to
      throw him away in the adult criminal system where he is more
      likely to become unemployable and a career criminal. The Court,
      however, is not willing to do so. [Gates] is not a lost cause. He
      is amenable to treatment and rehabilitation; he simply
      [has not] been provided the programs and services he
      needs.

Trial Court Opinion, 5/27/16, at 3-7 (emphasis added).

      To reiterate, we will not set aside a decertification unless an appellant

demonstrates that the court committed a gross abuse of discretion. A gross

abuse of discretion is not demonstrated by merely reciting facts of record

that would support a result contrary to the court’s actual decision. See L.P.,

137 A.3d at 635. In this case, as the trial court’s analysis, as recited above,

indicates, and based upon undisputed evidence of record, Gates’ behavior

improved when he received some specialized services in the past. See Trial

Court Opinion, 1/13/16, at 9.     Additionally, the record supports the trial

court’s alternative conclusion that because Gates has not received sufficient

services to meet his behavioral needs, a conclusion cannot be formed on

whether he is or is not amenable to treatment or rehabilitation. Under the



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J-A03021-17



unique circumstances of this case, we are constrained to agree with the trial

court’s determination that keeping Gates in the adult system would not

serve the public interest as contemplated by Section 6355(a)(4)(iii) of the

Act. Accordingly, we cannot conclude that the trial court grossly abused its

discretion and, consequently, the Commonwealth’s argument does not merit

relief.
          Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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