J-S27028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PEDRO SANTANA

                            Appellant                 No. 1835 EDA 2014


        Appeal from the Judgment of Sentence entered March 25, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No: CP-39-CR-0002788-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED JULY 20, 2015

        Pedro Santana appeals from the judgment of sentence entered in the

Court of Common Pleas of Lehigh County (trial court), after he pled guilty to

robbery and conspiracy to commit robbery.1              On appeal, Appellant

challenges only the trial court’s denial of his motion to transfer his case to

juvenile court. Upon review, we affirm the judgment of sentence.

        On May 29, 2012, Detective Michael Williams, Allentown Police

Department, charged Appellant with, inter alia, robbery, conspiracy to

commit robbery, burglary, and theft by unlawful taking.         In his affidavit

accompanying the complaint, Detective Williams stated in part:

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), and 903(a), respectively.
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       2) [I] was asked to assist with a home invasion robbery being
       [investigated] by Detective Michael Popovich that occurred on
       May 26, 2012 at approximately 1245 hrs[.]

       3) The victim reported a home invasion robbery, stating 3 males
       entered her home without permission and 2 of the 3 males were
       armed with handguns.        Victim reported that the males
       demanded money and place[d] a handgun to her head and her 9
       year old daughter[’]s head.

       4) Victim reported the males took computers, jewelry, cash and
       a cell phone. Value of all items estimated at $3000.00.

       5) Detective Popovich responded to 973 Cedar St where one of
       the Defendants-Marco Tavarez[-] had been stopped and was
       found in possession of some of the stolen items and a mask.
       6) Detective Popovich and Detective Almonte conducted
       interviews with two of the actors and it was determined that
       Juvenile-[Appellant-] (6/18/94) was the third actor in the home
       invasion robbery.

       7) Detective Popovich was able to confirm this during a
       mirandized interview with [] Juan Cruceta. Cruceta identifie[d]
       the father and older brother of [Appellant] from photos provided
       by Detective Popovich.

       8) Detective Popovich obtain[ed] a photo of [Appellant] from
       Facebook and actor Juan Cruceta positively identifie[d] him from
       the photo as being part of the home invasion robbery.


Affidavit of Probable Cause, 5/29/12.

       On October 29, 2012, Appellant filed a motion for decertification titled

“Motion to Transfer to Juvenile Court,” alleging that he was 17 years old at

the time of the home invasion robbery.2           Motion for Decertification,

10/29/12, at ¶ 2. Based on his age, Appellant argued he was “in need of a

program of supervision, care and rehabilitation.” Id. at ¶ 3. He argued his
____________________________________________


2
  To put his age in proper perspective, he was 17 years old at the time of the
May 26, 2012 home invasion robbery. It is undisputed that, less than one
month after the robbery, Appellant turned 18 on June 24, 2012, based on
his date of birth of June 24, 1994.



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criminal prosecution would not serve the public interest.         See id. at ¶ 4.

Appellant also argued that, although he was involved in the home invasion

robbery, his involvement was limited to staying outside of the victim’s

house. See id. at ¶ 5.

       On July 2, 2013, the trial court conducted a hearing on Appellant’s

decertification motion.    In support of his motion, Appellant presented the

testimony of Dr. Frank Dattilio. Dr. Dattilio testified he obtained his Ph.D. in

clinical psychology from Temple University and practiced as a clinical and

forensic psychologist in Allentown. N.T. Decertification Hearing, 7/2/13, at

6-8.    Dr. Dattilio testified he evaluated Appellant in connection with

Appellant’s motion for decertification. Id. at 12. Dr. Dattilio testified he met

Appellant on two occasions at the Lehigh County Prison, researched and

reviewed the complete history of Appellant’s life, and examined, among

other documents, the criminal complaint and affidavit of probable cause,

Lehigh County Prison records, and Appellant’s ninth-grade high school

progress reports.      Id. at 12-13.        Dr. Dattilio also testified that he

administered a mental status examination and “a battery of psychological

tests and appraisals” that included an IQ test. Id. at 13.

       In discussing the results of the tests, Dr. Dattilio testified:

       I found that [Appellant] was oriented in time, place and person
       when I assessed his mental status. I also found that he was
       devoid of any psychotic ideation interfering with his primary and
       secondary thought processes.        [Appellant] also denied any
       serious anxiety and depression, but did admit that he could be
       impulsive at times and has difficulty thinking through his actions.
       Otherwise, he certainly was oriented in time, place – oriented in
       time, place and person and knew what he was doing. I also

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        found on an IQ test that he complete[d] full scale IQ score of 56,
        which placed [Appellant] in the mild mentally retarded range.
        He did seem to have the highest scores in his abilities to learn
        from past experiences which fell in the low, average rage, but
        otherwise he is clearly in the mild mentally retarded range at 56.

              In addition I found that [Appellant] had some problems
        with hostility as well as depression. There’s some difficulty with
        impulse control.       He does not have any other serious
        psychopathology nor was there any indication of serious
        substance abuse or dependence with him.

              [Appellant] also – he had some difficulties with family
        problems, particularly, his stepmother. And he also has difficulty
        at times expressing himself. He’s also very prone towards being
        influenced by others and he is a little bit vulnerable to peer
        pressure.
              I did not find that he had any serious psychopathology that
        would warrant the diagnosis of anti-social personality or
        anything more serious than that. And I found that he also was
        able to take responsibility and experience remorse.


Id. at 24-25.      With respect to Appellant’s level of maturity, Dr. Dattilio

opined:

        Well, he’s a little bit on the immature side despite the fact that
        he’s eighteen. He’s really more on the level of a fifteen or
        sixteen-year-old. [Appellant] was a little bit sheltered during
        [his] life, and I think that part of what happened with him is that
        he became involved with some Dominican youths who he – he
        kind of followed the fleet. You know. He is mentally retarded.
        His ability to develop insight is not as good as what we would
        find with most individuals who are average IQ.             I think
        [Appellant] was very vulnerable. And so, that immaturity played
        against him. So, we’re not talking about somebody who is very
        sophisticated or, you know, eighteen going on thirty, this is
        really somebody that’s very immature for his age.


Id. at 27. Dr. Dattilio noted the absence of a criminal record on Appellant’s

part.    Specifically, Dr. Dattilio testified “this is the first incident and that

counts for a lot. It certainly says that [Appellant is] amenable to treatment

because he does not have this hardened history of becoming involved in

anti-social acts.” Id. at 34. In recommending Appellant would benefit from


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the juvenile system, Dr. Dattilio opined with a reasonable degree of

psychological certainty:

      [Appellant] is amenable to treatment and decertification in the
      juvenile system prior to the age of twenty-one, and that it would
      be in the best interest of the public for him to do so. I’m
      recommending that [Appellant] be considered for a juvenile
      placement such as ARC or Loysville . . . because they have a
      Spanish component to the program that also involves English
      emergence so that he will learn English through that program.
      . . . I also believe that at this program, [Appellant] will be
      afforded the type of individual and group psychotherapy that will
      help him work on his issues of anxiety and depression as well as
      his poor impulse control. I also see that there are some anger
      issues with him that he needs how to learn to facilitate and
      redirect and these programs are excellent for acquiring
      management skills, as well as emotional regulation.

       ....

            In addition, I think that, you know, consultation with a
      psychiatrist in this program may be helpful too if his depression
      or anxiety doesn’t abate.

            He also needs some direction with regard to      goals and
      objectives for him in his life to complete the GED.    I think he
      would be a prime candidate once he acquires more        fluency in
      English to become involved in Job Corp[s] Program or   something
      that would provide him with skills, training.


Id. at 37-38.

      On cross-examination, Dr. Dattilio acknowledged Appellant was aware

that his cohorts were going to commit an armed home invasion robbery prior

to its occurrence.   Id. at 44-45. Dr. Dattilio also acknowledged Appellant

was aware prior to the armed home invasion robbery that people would be

inside the house. Id. at 45. Dr. Dattilio, however, clarified that Appellant

was not aware that there was going to be a child inside the house and that

Appellant “was a little upset when he found out there was a child involved.”

Id.

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      Dr.   Dattilio   admitted   Appellant   did   not   “actually      accept   full

responsibility” for his participation in the home invasion robbery and did not

tell Dr. Dattilio exactly what Appellant had done.        Id.   at 47.    Moreover,

Dr. Dattilio admitted Appellant minimized his role in the home invasion

robbery, as “most juveniles do that.” Id. Dr. Dattilio recognized Appellant

was eighteen at the time he examined Appellant.                 Id.      Dr. Dattilio

acknowledged Appellant was living with his twenty-one-year-old girlfriend at

the time of the crime, and attending school sporadically. Id. at 49.

      Finally, Dr. Dattilio agreed Appellant would receive “all of the things

that are recommended” by him if the court were to send Appellant to SCI

Pinegrove instead of a juvenile facility. Id. at 56. By subjecting Appellant

to the adult system, Dr. Dattilio also agreed Appellant would have “the

added benefit of extended supervision.” Id. at 58.

      In response, the Commonwealth presented the testimony of Detective

Kevin Mriss, a sixteen-year veteran of the Allentown Police Department. Id.

at 66.   Detective Mriss testified, as part of his job duties, he was familiar

with the treatment options available to juvenile and adult offenders. Id. at

67.   Describing the nature of home invasion robberies, Detective Mriss

testified they “are very serious due to very violent takeovers of homes. The

violence that is employed by the actors. The threat of violence that could

erupt once the act[or] is inside the home[.]” Id. at 68. He explained that

home invasion robberies are sophisticated in nature because of “[t]he use of

weapons, the use of gloves and masks,” as well as the need for surveillance

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and a getaway driver.           Id. at 69.       Ultimately, Detective Mriss opined

Appellant should remain in the adult system, given the nature of the crime,

specially the use of handguns in the violent takeover of the victim’s house

on a Saturday afternoon. Id. at 71.

       Following the hearing, on September 16, 2013, the trial court issued

an opinion and order, denying Appellant’s motion for decertification.                On

January 27, 2014, Appellant pled guilty to robbery and conspiracy to commit

robbery and on March 25, 2014, the trial court sentenced Appellant to 54 to

120 months’ imprisonment.           On March 31, 2014, Appellant filed a post-

sentence motion, which the trial court denied on June 16, 2014. Thereafter,

Appellant timely appealed to this Court.3

       On appeal, Appellant raises a single issue for our review:

       [1.] Whether the trial court erred when it failed to thoroughly
       analyze the relative statutory factors and concluded that a
       transfer to juvenile court would not serve the public interest?


Appellant’s Brief at 4.

       We review a trial court’s denial of a motion for decertification for abuse

of discretion.     See Commonwealth v. Smith, 950 A.2d 327, 328 (Pa.

Super.    2008)     (citation   omitted)       (“[D]ecisions   of   whether   to   grant

____________________________________________


3
  Following Appellant’s filing a 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,
wherein the court incorporated its September 16, 2013 opinion addressing
the denial of Appellant’s motion for decertification.




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decertification will not be overturned absent [] 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.” Id.

      Pursuant to 42 Pa.C.S.A. § 6322(a) [of the Juvenile Act (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 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. 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:

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         (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:

            (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). Although it requires a trial court to consider

all of these factors, the Juvenile 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.”


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

also Sanders, 814 A.2d at 1251 (“A decertification court must consider all

of the factors set forth in Section 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.”).
       Instantly, Appellant challenges only             the   weight the    trial court

attributed to each Section 6355(a)(4)(iii) factor.4             Specifically, Appellant

argues “the trial court gave significantly more weight to factors A, B and D

. . . than the remaining factors.”             Appellant’s Brief at 13.    We construe

Appellant’s argument as inviting this Court to                  reweigh the Section

6355(a)(4)(iii) factors. As a reviewing court, however, we may not reweigh

statutory factors set forth in Section 6355(a)(4). See Commonwealth v.

In re E.F., 995 A.2d at 326, 333 (Pa. 2010) (“It is further not the role of an

appellate court to reweigh statutory factors to conclude that the seriousness

of the offense and the deleterious effects suffered by the victim warrant

certification.”). Moreover, as noted earlier, the Juvenile Act is silent as to

the weight to be afforded to each factor, as that is left to the sole discretion


____________________________________________


4
  Here, it is undisputed that Appellant was charged with an offense that
properly vested jurisdiction in the criminal court. Specifically, Appellant was
charged in connection with an armed home invasion robbery, and under
Section 6302 of the Juvenile 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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of the trial court.5 Commonwealth v. Jackson, 722 A.2d 1030, 1033-34

(Pa. 1999). Accordingly, we reject as meritless Appellant’s challenge to the

weight ascribed by the trial court to the Section 6355(a) factors.

       Nonetheless, based upon our review of the record, as set forth above,

we conclude the trial court did not abuse its discretion in denying Appellant’s

decertification motion. As the trial court reasoned:

       [Appellant] has failed to meet his burden.             [Appellant]
       participated in a home invasion robbery, wherein two of his co-
       defendants threatened a mother and her 9 year old daughter by
       holding guns to their heads. The crime occurred on a Saturday
       afternoon. The impact of this on the victims and the community
       can only be described as severe. [Appellant] was aware of what
       was going to happen prior to any of the actors entering the
       home. He had the opportunity to reflect on what he was going
       to do, but still chose to participate. There was evidence that the
       actors planned this home invasion, including targeting that
       specific home, arriving with gloves, masks, and handguns, and
       having a getaway driver. [Appellant] participated in a violent,
       adult crime, and was himself just shy of being legally an adult at
       the time.        While [Appellant] suffers from mild mental
       retardation, his needs in this area can be addressed in the adult
       system. [The trial court does] not find [Appellant] has met his
       burden of establishing that a transfer to the juvenile system will
       serve the public interest. As such, the motion must be denied.


Trial Court Opinion, 9/16/13, at 4.
____________________________________________


5
  Even if the trial court did not explicitly address certain factors enumerated
in Section 6355(a)(4)(iii) of the Juvenile Act, such a scenario does not
automatically render the juvenile court’s decision an abuse of discretion,
particularly when the record contains adequate facts supporting the juvenile
court’s ruling. Commonwealth v. Spotti, 94 A.3d 367, 373 (Pa. Super.
2014) (citing Jackson, 722 A.2d at 1034 (“The presumption in this
Commonwealth remains that if a court has facts in its possession, it will
apply them[,]” and “[w]hen evaluating the propriety of a certification
decision, absent evidence to the contrary, a reviewing court must presume
that the juvenile court carefully considered the entire record.”)), appeal
granted on other grounds, 107 A.3d 748 (Pa. 2015).



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




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