J-A12012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE:                                   :     IN THE SUPERIOR COURT OF
D.S.                                     :          PENNSYLVANIA
                                         :
                                         :
APPEAL OF:                               :
D.S.                                     :     No. 83 EDA 2013


            Appeal from the Order Entered November 16, 2012,
           In the Court of Common Pleas of Philadelphia County,
            Juvenile Division, at No. CP-51-JV-00003502-2012.


BEFORE: SHOGAN, STABILE and PLATT*, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 31, 2014

     Appellant, D.S., a minor female, appeals from the order of disposition

entered after she was adjudicated delinquent on a charge of possession of a

controlled substance. We vacate and remand.

     The trial court summarized the factual history of this case as follows:

            During the course of the hearing held on the Motion to
     Suppress on November 16, 2012, this Court heard testimony
     from one (1) witness. Sergeant Michael Cerruti, Badge Number
     8649, testified that he was assigned to the 15th District in the
     City of Philadelphia when he came into contact with [Appellant]
     on September 12, 2012, around 1:15 PM on the 4600 block of
     Oakmont Street. (Notes of Testimony 11/6/2012, pages 4-5)
     The officer identified [Appellant] at the bar of the court and
     testified that she was the front passenger in a red Dodge which
     was parked illegally in a driveway during the incident in
     question. (Notes of Testimony 11/6/2012, pages 5-7) Sergeant
     Cerruti testified that the driver was a male and that both he and
     [Appellant] were leaning into the radio area of the vehicle when
     he approached the passenger side of the vehicle. (Notes of
     Testimony 11/6/2012, pages 5-6) Sergeant Cerruti said that he
     asked [Appellant] [what] she was doing and she replied that it



__________________
*Retired Senior Judge assigned to the Superior Court.
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      Sergeant Cerruti testified that [Appellant] appeared young and,
      since it was during school hours on a weekday, he asked her for
      identification.  (Notes of Testimony 11/6/2012, pages 6-7)
      Sergeant Cerruti indicated that [Appellant] pulled out her wallet
      and he saw a bulge inside it. (Notes of Testimony 11/6/2012,
      page 6) When he asked [Appellant] what was in the wallet,
      [Appellant] said it was her medication. Sergeant Cerruti then
      explained that [Appellant] opened a napkin containing fifty (50)
      blue pills which he immediately confiscated and placed on
      Property Receipt # 3056216.[1] (Notes of Testimony 11/6/2012,
      page 6)

Trial Court Opinion, 6/14/13, at 3-4.

      Appellant was arrested on September 13, 2012, and charged in a

juvenile petition with possession of a controlled substance.   On November



she immediately proceeded to trial.           The court found that Appellant

possessed a controlled substance and adjudicated her delinquent. Appellant

was placed on probation. This appeal followed.

      Appellant presents the following issue for our review:

      1. Did not the juvenile court judge err and abuse his discretion
      in adjudicating appellant delinquent without inquiring into
      whether, or making a finding that, appellant was in need of
      treatment, rehabilitation or supervision?
                     2




1
  The fifty pills contained in the napkin were oxycodone, a controlled
substance.
2
  We note that the Commonwealth contends that Appellant has not
preserved this issue on appeal because she has altered her theory for relief


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      In her sole issue on appeal, Appellant argues that the juvenile court

improperly adjudicated her delinquent.             Specifically, she claims that,

following her hearing in which she was found to have committed the

delinquent act, the court should have held a hearing to determine whether

Appellant was in need of treatment, rehabilitation, or supervision. Appellant

contends the juvenile court abused its discretion in failing to hear evidence

or   argument    concerning       whether    she   was   in   need   of    treatment,

rehabilitation, or supervision.

      Our standard of review of dispositional orders in juvenile proceedings

is settled.   The Juvenile Act grants broad discretion to juvenile courts in

determining appropriate dispositions.         In re R.D., 44 A.3d 657, 664 (Pa.

Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012).              In ad

petition alleging that a child is delinquent must be disposed of in accordance

with the Juvenile Act.    Dispositions which are not set forth in the Act are

                                                   Id. (citation omitted).    We will


from that presented in her Pa.R.A.P. 1925(b) statement.                   In her Rule
1925(b) statement, Appellant included the following issue:

      b. The trial court erred and abused its discretion when it ordered
      that appellant be adjudicated delinquent, insofar as appellant did
      not meet the statutory criteria for such adjudication, and the
      court relied upon improper considerations in making its ruling.


Rule 1925(b) statement and in her appellate brief appear on their face to be
different, they are sufficiently similar for us to conclude that the claim before
us was properly preserved.


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disturb a juv

abuse of discretion.   Commonwealth v. B.D.G., 959 A.2d 362, 366-367

(Pa. Super. 2008).

     Indeed, a purpose of the Juvenile Act is as follows:

     Consistent with the protection of the public interest, to provide
     for children committing delinquent acts programs of supervision,
     care and rehabilitation which provide balanced attention to the
     protection of the community, the imposition of accountability for
     offenses committed and the development of competencies to
     enable children to become responsible and productive members
     of the community.



intent to protect the community while rehabilitating and reforming juvenile

                In the Interest of J.C., 751 A.2d 1178, 1181 (Pa. Super.

2000).

     In In the Interest of M.W., 39 A.3d 958 (Pa. 2012), our Supreme

Court was called upon to interpret the Juvenile Act, 42 Pa.C.S.A §§ 6301-

6365, to determine the proper procedure that a juvenile court must follow

before reaching a final delinquency adjudication.       After reviewing the

statutory language and the applicable procedural rules, the Supreme Court

held that, in order to adjudicate a child delinquent, the juvenile court must

                that the juvenile has committed a delinquent act [beyond a

reasonable doubt], and (2) determine that the juvenile requires treatment,

                               M.W., 39 A.3d at 966 (emphasis in original).




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A determination that a child has committed a delinquent act does not, on its

own, warrant an adjudication of delinquency.     Id

the delinquent act constitutes a felony because, while the commission of

such an act presumptively supports a finding that the juvenile is in need of

treatment and supervision (and thus can be adjudicated delinquent), the

juvenile court must still make that finding after allowing for other

evidence      Id.   at 966 n.9 (emphasis added) (citing 42 Pa.C.S.A. §

6341(b)).

      Here, our review of the record reflects that on November 16, 2012, the



evidence.   N.T., 11/16/12, at 4-11.   At the conclusion of the hearing, the



      Our review of the record further reveals that at the conclusion of the

hearing on the motion to suppress, the juvenile court proceeded to



evidence regarding whether Appellant required treatment, supervision or

rehabilitation. The following is the complete transcript of what transpired:

      [DEFENSE COUNSEL]:
      honor, we would be moving forward to trial.

      [ASSISTANT DISTRICT ATTORNEY]:

      (Pause.)




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     [ASSISTANT DISTRICT ATTORNEY]:          The      Commonwealth
     would simply recall Sergeant Cerruti to testify to the property


     THE COURT:

     [ASSISTANT DISTRICT ATTORNEY]:           All right.

     THE COURT:       Are we going to fight over this?

     [DEFENSE COUNSEL]:

     THE COURT:       So the Commonwealth is going to move to
     amend and include all relevant nonhearsay testimony from the
     motion and the defense is going to stipulate to the property
     receipt numbers. Anything else?

     [ASSISTANT DISTRICT ATTORNEY]:           Oh,   and    the   seizure
     analysis, Your Honor.

     [DEFENSE COUNSEL]: Yes.

     THE COURT:       Okay. And then the Commonwealth is going to
     rest?

     [ASSISTANT DISTRICT ATTORNEY]:
     Your Honor.

     THE COURT:


     [DEFENSE COUNSEL]: Your Honor, that got a court date of, I
     believe, January in Courtroom F.

     THE COURT:       Transfer her case out to Delaware County.

     [DEFENSE COUNSEL]: Your Honor, I would --

     THE COURT:
     Upper Darby, Delaware County.

     [DEFENSE COUNSEL]: Why are you adjudicating --



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      THE COURT:       Because she has an open case which
      proceeded [sic] this case by a significant amount of time. For
      whatever reason there is not going to --
      with what goes on over there.

      [DEFENSE COUNSEL]: I would ask that you keep her here

      her
      school. She [is] working on getting into drug counseling, Your
      Honor. I would ask at [this] time that you keep her adjudication
      deferred.

      THE COURT:       She would be adjudicated delinquent and
      placed on probation with random urine test and mandatory
      school. Case has been transferred to Delaware County.

      THE COURT:        12/11.

      [DEFENSE COUNSEL]: You have 10 days to ask the Judge to
      reconsider this decision, 30 days to appeal. Both must be done
      in writing. Please let me know if you want to file those matters.

N.T., 11/16/12, at 12-14.

      The above reflects that the juvenile court did not adhere to the two-

step process set forth in M.W.. More specifically, although the juvenile court

determined that Appellant committed a delinquent act, the juvenile court did

not accept evidence or specifically determine that Appellant requires

treatment, supervision, or rehabilitation. See M.W., 39 A.3d at 966. Thus,

we are constrained to vacate the dispositional order of the juvenile court and

remand the case for further proceedings to determine whether Appellant is

in need of treatment, supervision, or rehabilitation.   If the juvenile court

finds that Appellant is so in need, only then should the court enter an



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J-A12012-14



adjudication of delinquency. If, however, the court concludes that Appellant

is not in need of treatment, supervision, or rehabilitation, it should dismiss

the proceeding, terminate jurisdiction, and discharge Appellant.

      Dispositional   order   vacated.         Case   remanded.    Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/2014




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