J-A26027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TREAZURE TONEY                             :
                                               :
                       Appellant               :   No. 399 WDA 2018

           Appeal from the Judgment of Sentence February 16, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0000591-2017


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                           FILED FEBRUARY 15, 2019

       Appellant, Treazure Toney, appeals from the judgment of sentence

entered following his conviction of robbery.1 We affirm.

       The trial court summarized the underlying facts of this case as follows:

       [Appellant] (who was then 16 years old) and another unidentified
       person committed an armed robbery on a 14 year-old male on
       January 9, 2017. [Appellant] contacted the victim to meet him
       via a Facebook message. While the victim was waiting for
       [Appellant], [Appellant] and another person arrived.          Both
       [Appellant] and his coconspirator were armed with handguns.
       [Appellant] stuck a handgun into the right side of the victim and
       then to the victim’s head and went through his pockets and took
       his belongings. [Appellant] threatened the victim by telling him
       he would come back and shoot up his house if the victim notified
       the police. [Appellant] stole $180 and an iPhone. [Appellant] fled
       the scene after the robbery and police officers were able to track
       him by following his footprints in the snow. [Appellant] was found
       hiding on a roof of a shed. He was ordered to come down from
       the roof. [Appellant] refused to present his hands at the time of
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1   18 Pa.C.S. § 3701(a)(1)(ii).
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        the arrest. [Appellant] was forcibly arrested. While back at the
        police station, in the presence of his mother, [Appellant] unzipped
        his pants and asked the arresting officer if he had “ever seen a
        black dick before?” [Appellant] then purposefully urinated on the
        police station floor.

Trial Court Opinion, 5/18/18, at 1-2.

        On January 9, 2017, Appellant was charged with one count each of

robbery, possession of a firearm by a minor, terroristic threats, resisting

arrest, escape, and loitering and prowling at nighttime.2 A preliminary hearing

was held on January 18, 2017, following which the charge of escape was

dismissed and the remaining charges were held for trial. On April 3, 2017,

Appellant filed a motion to transfer his case to juvenile court. A decertification

hearing was held on July 21, 2017, and the trial court denied relief. Pursuant

to a negotiated plea agreement, Appellant pled guilty to robbery on

February 16, 2018, and the remaining charges were withdrawn. The same

day, the trial court sentenced Appellant to serve a term of incarceration of ten

to twenty months, to be followed by three years of probation. This timely

appeal followed. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant presents the following issue for our review:

        I. Whether the trial court grossly abused its discretion in denying
        [Appellant’s] request to transfer his case to juvenile court?

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2 18 Pa.C.S. §§ 3701(a)(1)(ii), 6110.1(a), 2706(a)(1), 5104, 5121(a), and
5506, respectively.



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Appellant’s Brief at 6.3

       In his sole issue, Appellant argues that the the trial court abused its

discretion in denying his request to transfer this matter from criminal court to

juvenile court. Appellant’s Brief at 17-29. Basically, Appellant contends that

the trial court erred in refusing to transfer his case in light of the

Commonwealth’s stipulations to certain facts and the fact that Appellant had

neither a prior criminal history nor an opportunity to receive treatment

through the juvenile system. Id. The three Commonwealth stipulations upon

which Appellant premises his argument are that: (1) Alice Applegate, Ph.D.,

was qualified to testify as an expert;4 (2) “[Appellant], after reading

Dr. Applegate’s report, has [met the] burden of amenability to treatment”;5

and (3) that Appellant is amenable to treatment.6

       “This Court will not overturn a decision to grant or deny decertification

absent a gross abuse of discretion.” Commonwealth v. Thomas, 67 A.3d

838, 843 (Pa. Super. 2013). “An abuse of discretion is not merely an error of


____________________________________________


3  “A plea of guilty constitutes a waiver of all nonjurisdictional defects and
defenses.” Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007)
(internal quotation marks and citation omitted). Denial of a decertification
motion, however, presents a jurisdictional issue.        Commonwealth v.
Johnson, 669 A.2d 315, 320 (Pa. 1995).
4  Dr. Applegate conducted a psychological evaluation of Appellant.        N.T.
7/21/17, at 6-7.

5   N.T., 7/21/17, at 5.

6   N.T., 7/21/17, at 19.

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judgment, but if in reaching a conclusion the law is overridden or misapplied,

or the judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will, as shown by the evidence of record.”

J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (internal alteration

and citation omitted).

             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 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.’

Thomas, 67 A.3d at 841-842 (quoting Commonwealth v. Brown, 26 A.3d

485 (Pa. Super.2011)).

      In this case, Appellant was charged properly as an adult because

robbery is excluded from the definition of a “delinquent act” when committed

by an individual at least fifteen years of age who possesses a deadly weapon.




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42 Pa.C.S. § 6302(2)(ii)(D).         The decertification statute provides the

following:

      In determining whether to transfer a case . . . the child shall be
      required to establish by a preponderance of the evidence that the
      transfer will serve the public interest. In determining whether the
      child has so established that the transfer will serve the public
      interest, the court shall consider the factors contained in section
      6355(a)(4)(iii).

42 Pa.C.S. § 6322(a).

      Section 6355(a)(4)(iii) mandates that the decertification court consider

the following factors when making a decertification decision:

      (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;

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            (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; [and]

            (IX) any other relevant factors[.]

42 Pa.C.S. § 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.”

Brown, 26 A.3d at 492 (citation omitted). Thus, a decertification court is free

to weigh the factors as it deems appropriate. Commonwealth v. Sanders,

814 A.2d 1248, 1251 (Pa. Super. 2003) (citation omitted).          Furthermore,

although the decertification “court must consider all the fact[ors] set forth in

[Section] 6355 of the Juvenile Act, . . . it need not address, seriatim, the

applicability and importance of each factor and fact in reaching its final

determination.” Commonwealth v. Ruffin, 10 A.3d 336, 339 (Pa. Super.

2010) (citation omitted).

      At the conclusion of the decertification hearing, the trial court offered

the following statement to support its decision to deny decertification, which

reflected its understanding and consideration of the relevant statutory factors:

            One of the disturbing parts of the facts of the events, and I
      believe some of this was brought up on cross-examination by

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     defense counsel at the preliminary hearing, is that it appears that
     this was a setup, appears it was prearranged, that [Appellant]
     knew the victim and they had talked about connecting
     somewhere. It did appear the victim discussed that, it was a little
     vague in the preliminary hearing, but he clearly agreed that they
     were on the phone and they were intending to meet. So this, to
     me, demonstrates a substantial degree of criminal sophistication.
     It’s not a chance encounter. This was a planned event one could
     reasonably infer.

           [The prosecutor] is commenting on the – I don’t know if its
     a recent trend, but seems like a recent trend where we have drug
     deals go awry, and in many instances they are planned to go awry
     by the person with the gun. That reflects on the dangerousness
     to the community.

           I don’t think [the prosecutor] is arguing the other cases
     where people got shot or killed. We’ve had cases in this room
     over marijuana, to argue that it is something that our community
     is seeing more of. And so as a general matter, it does reflect
     poorly on [Appellant] with regard to the aspect of dangerousness
     to the community.

           The records of [Appellant] that are outlined and given to the
     [c]ourt by the Commonwealth and Dr. Applegate also talks about
     a lot of his interactions with the school districts where he was
     shows that [Appellant] seems to be very defiant, disrespecting
     authority, and really is not very responsive in a positive way
     through many, many efforts to try to correct his behavior.

           Even Dr. Applegate, in her discussion of [Appellant’s] case,
     indicates that there’s some contraindication to amenability to
     treatment, Page 34, at the bottom of that page. I accepted [that]
     Dr. Applegate concludes that [Appellant] is amenable to
     treatment, but there is some caution to be taken with regard to
     that conclusion. The dangerousness of the conduct, however, is
     really substantial in this case.       For all practical purposes,
     [Appellant] is 17 years old. He does seem to have gotten into
     legal problems quickly. He doesn’t have a substantial juvenile
     record. But the nature of the conduct, [Appellant’s] history of
     being disrespectful and uncooperative with authorities in settings
     where other juveniles are around him, school in particular,
     suggests to the [c]ourt that this is not an appropriate case to send
     across the street. This petition is denied.

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J-A26027-18


N.T., 7/21/17, at 21-23.

     In addition, as is reflected in the following analysis in its written opinion,

the decertification court carefully considered the statutory factors and

determined that Appellant failed to prove that transfer to juvenile court was

appropriate:

            During the transfer hearing, the report and testimony of
     psychologist, Alice Applegate, was presented by [Appellant].
     Dr. Applegate concluded that [Appellant] is amenable to
     treatment in the juvenile justice system. This [c]ourt considered
     all of the evidence offered at the transfer hearing, including the
     report and testimony of Dr. Applegate. This [c]ourt’s decision not
     to transfer [Appellant’s] case to juvenile court was based on the
     serious impact of the armed robbery on the victim; the impact of
     the offense on the community; the serious threat to the safety of
     the public or any individual posed by [Appellant]; the nature and
     circumstances of the offense allegedly committed by [Appellant]
     and the degree of [Appellant’s] culpability. While there was
     evidence presented that [Appellant] was amenable to treatment
     in the juvenile system, this [c]ourt believes that the factors cited
     above outweighed the evidence of amenability to treatment.

             There is no question that the circumstances of the instant
     offense were serious. Its impact on the victim and the community
     cannot be overstated. In this [c]ourt’s view, [Appellant] contacted
     the victim to meet him. As this [c]ourt noted during the hearing,
     the meeting was actually a set-up. [Appellant] pulled a gun, held
     it to the victim’s head and forcibly robbed the victim of money and
     a cell phone. [Appellant] then threatened the victim and his family
     with physical harm if the victim contacted the police. This [c]ourt
     views this offense as gravely serious and [Appellant] played the
     central role in the robbery.

           In addition to the circumstances of the offense of conviction,
     this [c]purt also considered [Appellant’s] history of being
     uncooperative, defiant and disrespectful to authorities in settings
     where other juveniles are present (at school).             Although
     Dr. Applegate opined that [Appellant] is amenable to treatment in
     the juvenile justice system, Dr. Applegate’s report contained 13
     pages of notations concerning [Appellant’s] defiant conduct

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     toward authorities when he was in school. [Appellant] persistently
     engaged in fighting behavior with male and female students and
     he was constantly disruptive in class. The behavior continued
     between ages 5 and 16. On December 14, 2016, at age 16,
     [Appellant] was found in possession of marijuana at Carrick High
     School.

           This [c]ourt also considered [Appellant’s] absolute disregard
     for the authority of police officers. In addition to the incident at
     the police station in which [Appellant] urinated on the floor of the
     police station, [Appellant] also had prior interactions with the law
     that demonstrated his lack of respect for authority. On November
     12, 2016, [Appellant] stole a vehicle and led police on a chase that
     resulted in [Appellant’s] fleeing the police at a speed of
     approximately 75 miles per hour. [Appellant] lost control of the
     vehicle and wrecked the vehicle.

           This [c]ourt also considered that, at the time of the
     decertification hearing, [Appellant] was four days shy of his 17 th
     birthday.

           Moreover, the threat to the safety of the individual who was
     robbed in this case, in particular, and the public in general, was
     not inconsequential. The robbery in this case was pre-planned
     and [Appellant] used social media to lure the victim to the location
     of the robbery, thereby demonstrating substantial criminal
     sophistication. Though [Appellant] does not have a lengthy
     criminal record, it appears as though his criminal conduct has
     escalated in the year surrounding the offense of conviction. The
     record demonstrates that [Appellant] is a threat to the
     community.

           Considering all of the relevant factors, this [c]ourt believes
     that the public interest would not be served by transferring this
     case to juvenile court. Accordingly, the judgment of the [c]ourt
     should be affirmed.

Trial Court Opinion, 5/18/18, at 3-6 (footnote omitted).

     The General Assembly has determined that individuals at least fifteen

years of age, who possess a deadly weapon and commit robbery, should most

often be tried as an adult.   Instantly, the decertification court found that

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Appellant failed to show that transfer to juvenile court would be in the public’s

interest. The record reflects that the decertification court properly considered

the statutory factors, including that an expert opined Appellant was amenable

to treatment as a juvenile, when reaching this decision and it is supported by

ample evidence. The weight to be assessed to each of the statutory factors is

reserved for the decertification court’s discretion. Brown, 26 A.3d at 492.

Accordingly, we conclude that the decertification court did not abuse its

discretion in denying Appellant’s decertification motion requesting transfer of

this case to juvenile court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2019




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