J-S77012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

I. J.-W.

                            Appellant                No. 2018 MDA 2015


              Appeal from the Judgment of Sentence April 4, 2016
            In the Court of Common Pleas of Northumberland County
               Criminal Division at No(s): CP-49-CR-0001078-2015


BEFORE: PANELLA, J., OLSON, J., PLATT, J.

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 12, 2016

        Appellant, I. J.-W., appeals from the judgment of sentence entered by

the Court of Common Pleas of Northumberland County following Appellant’s

guilty plea to criminal conspiracy to commit robbery.1 Appellant alleges that
____________________________________________



    Retired Senior Judge assigned to the Superior Court.
1
  Appellant purports to appeal the order entered October 13, 2015, which
certified Appellant’s case for adult criminal court. See Notice of Appeal,
11/5/15. However, the October 13 order was an interlocutory order. See In
the Interest of McCord, 664 A.2d 1046, 1048 (Pa. Super. 1995) (“Where a
juvenile appeals the transfer of his case to the criminal division or the denial
of transfer from the criminal division, double jeopardy protections are not
implicated. Such orders are, in every sense, interlocutory, and are not
appealable until judgment of sentence has been entered.”) Despite
Appellant’s error, this appeal is properly before us. The judgment of
sentence was entered on April 4, 2016. Further, we will treat Appellant’s
notice of appeal as timely filed from the April 4, 2016 judgment of sentence.
See Pa.R.A.P. 905(a)(5) (a notice of appeal filed after the announcement of
a determination but before the entry of an appealable order shall be treated
(Footnote Continued Next Page)
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the juvenile court erred and abused its discretion by certifying her for trial as

an adult. After careful review, we affirm.

      The relevant facts and procedural history are as follows. On July 30,

2015, police were notified that four female juvenile residents had stolen a

vehicle and absconded from the Building Bridges program at Northwestern

Academy in Coal Township, Northumberland County, Pennsylvania. Upon

arrival at Northwestern Academy, Officer Matthew Hashuga spoke with Angel

Wright, an employee of Northwestern Academy who had been assaulted by

the four juveniles prior to their escape.

      Wright had been sitting in the dormitory common room with Appellant,

who was fourteen years of age at the time, and another juvenile, S.Q., when

someone approached her from behind and wrapped a sheet around her

head. Wright was repeatedly struck in the head, causing her to become dizzy

and nauseous. The assault continued until Wright stated, “[j]ust take what

you want.” N.T. Certification Hearing, 10/7/15, at 9. At a certain point

towards the end of the assault, the sheet slipped from her eyes and Wright

observed Appellant standing over her, Appellant’s bracelet scattered in

pieces on the floor, and S.Q. on the other side of the room. Appellant

removed Wright’s staff keys from Wright’s belt, tossed the keys to S.Q. and

stood watch over Wright as S.Q. opened the staff station and removed

                       _______________________
(Footnote Continued)

as filed after such entry and on the day thereof). We have corrected the
caption accordingly.



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Wright’s purse and other items from the station. Appellant subsequently

instructed Wright to stand up, and led her by the wrist to a closet. Wright

was locked in the closet while Appellant and the other juveniles escaped in

Wright’s vehicle.

      Although Wright was not able to see the person who tied the sheet

around her head, she concluded that it was Appellant, as Appellant was the

only person located behind her with a sheet prior to the attack. Further,

while Wright had the sheet tied around her head during the entire attack,

the sheet shifted at one point and she was able to identify Appellant

standing above her. From Wright’s account, Officer Hashuga concluded that

Appellant was the main actor in Wright’s attack. Appellant was charged with

robbery, three counts of aggravated assault, theft by unlawful taking,

conspiracy to commit robbery, conspiracy to commit aggravated assault, and

simple assault.

      The   Commonwealth      requested    that   the   juvenile   court   transfer

Appellant’s case to adult court. A certification hearing was held on October

7, 2015. At the hearing, Wright testified that she sustained multiple injuries

to her face, neck, shoulders, and upper back because of the attack. Further,

Wright states that the attack left her “afraid of everything.” Id. at 16.

      Jessica McKee testified on behalf of Dauphin County Children and

Youth Services. McKee testified that Appellant had a long history with

Children and Youth, and had been placed in approximately 38 different

homes between 2006 and 2009. Appellant was initially placed in March 2006

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and was removed in April 2007 at the request of the foster parents due to

Appellant’s disrespectful behaviors, aggression, and destruction of property.

Appellant was placed with another family from April 2007 through January

2008, and though concerns with Appellant’s behaviors were noted, she was

ultimately removed due to the instability of the foster family. From January

2008 through August 2008, Appellant was placed into three different foster

homes before being returned home. Appellant re-entered foster care in

September 2008 and was returned home in June 2009.

     Appellant did not have contact with Children and Youth again until May

2015. Appellant’s mother reported that Appellant had been staying with a

family friend, and that Appellant was engaging in physical altercations and

was running away from the family friend’s residence. Children and Youth

took Appellant into their custody on May 5, 2015 and placed her at

Stormbreak’s Girls Home until May 13, 2015, when they released her to a

family member. The following day, Appellant ran away from the family

member’s home. Appellant was subsequently placed at Schaffner Youth

Center. While living at Schaffner, Appellant was involved in two physical

altercations with peers and was physically and verbally aggressive towards

staff members. Following a psychological evaluation at Schnaffer, an

increased level of care for Appellant was recommended and she was placed

in the Building Bridges program at Northwestern Academy.

     Devin Yeager testified on behalf of Northumberland County Juvenile

Probation. Yeager stated that prior to the instant charges, Appellant was on

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probation for retail theft and other theft charges. In addition to her charged

crimes, Yeager reported that Appellant was reported to have stolen a

vehicle, but that the vehicle’s owner did not wish to press charges. Despite

these incidents, Yeager testified that Appellant was performing well

academically. However, Appellant had frequent conflicts with teachers and

significant absences from school. Further, because of Appellant’s placements

within the foster care system, Yeager reported that Appellant had been

receiving services that she would receive in the juvenile court system for

years. Due to Appellant’s history, Yeager testified that he did not believe

that Appellant was amenable to treatment in the juvenile court system.

      Finally, Appellant’s mother, M. C., testified on behalf of Appellant. C.

testified that both she and Appellant’s father had criminal histories and

significant problems with drugs. C. testified that Appellant was forced to be a

caretaker for her younger siblings at a young age, and that she was

physically abused by her father to the extent that Appellant’s father received

child endangerment charges for his treatment of her.

      Following the conclusion of testimony, the juvenile court found that

based upon Appellant’s placement history, treatment history, criminal

history, the nature of the crime, and the fact that she was not committable

to an institution for the mentally ill, there was enough evidence to certify the

case to the adult court, permitting Appellant to be tried as an adult. On April

4, 2016, Appellant entered a guilty plea to criminal conspiracy to commit




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robbery, and was immediately sentenced to time served to 23 months’

imprisonment, followed by 1-year probation. This timely appeal follows.

      On appeal, Appellant asserts that the trial court erred in certifying her

case for adult court. See Appellant’s Brief, at 5. Specifically, Appellant

asserts that the court erred in determining that the Commonwealth

established a prima facie case of aggravated assault pursuant to 42

Pa.C.S.A. § 6355(4)(i). See id. Additionally, Appellant argues that the

Commonwealth did not prove that the transfer should have occurred as

required by the factors set forth in 42 Pa.C.S.A. § 6355(4)(iii). See id. at 5-

6.

      Our standard of review for evaluating the certification decision of the

juvenile court is as follows.

      The Superior Court must not upset the certification decision of a
      juvenile court unless the court has either failed to provide
      specific reasons for its conclusion that the juvenile is not
      amenable to treatment or the court committed a gross abuse of
      discretion. The existence of facts in the record that would
      support a contrary result does not demonstrate a gross abuse of
      discretion. To rise to a level of gross abuse of discretion, the
      court rendering the adult certification decision must have
      misapplied the law, exercised unreasonable judgment, or based
      its decision on ill will, bias, or prejudice.

Commonwealth v. Jackson, 722 A.2d 1030, 1032 (Pa. 1999) (internal

citation and quotation marks omitted).

      Turning to Appellant’s first issue on appeal, Appellant challenges the

juvenile court’s determination that the Commonwealth presented sufficient

evidence to support a prima facie case of aggravated assault necessary to


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support the transfer of charges to adult court. See Appellant’s Brief, at 5.

Appellant argues that the Commonwealth was unable to show sufficient

probable cause of aggravated assault because Wright was unable to identify

her attacker and did not suffer from serious bodily injury. See id. at 8-9. We

disagree.

     In order to support a transfer of a juvenile matter to criminal court,

the juvenile court must find that “there is a prima facie case that the child

committed the delinquent act alleged.” 42 Pa.C.S.A. § 6355(a)(4)(i). We

have previously held that

     [a] prima facie case consists of evidence, read in the light most
     favorable to the Commonwealth, that sufficiently establishes
     both the commission of a crime and that the accused is probably
     the perpetrator of that crime. The Commonwealth need not
     prove the defendant’s guilt beyond a reasonable doubt. Rather
     the Commonwealth must show sufficient probable cause that the
     defendant committed the offense, and the evidence should be
     such that if presented at trial, and accepted as true, the judge
     would be warranted in allowing the case to go to the jury. In
     determining the presence or absence of a prima facie case,
     inferences reasonably drawn from the evidence of record that
     would support a verdict of guilty are to be given effect, but
     suspicion and conjecture are not evidence and are unacceptable
     as such.

Commonwealth v. Hendricks, 927 A.2d 289, 291 (Pa. Super. 2007)

(internal citations, emphasis, and quotation marks omitted).

     The statute defining aggravated assault provides in relevant part, “[a]

person is guilty of aggravated assault if he: (1) attempts to cause serious

bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the


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value of human life.” 18 Pa.C.S.A. § 2702(a)(1). “Serious bodily injury” is

defined as, “[b]odily injury which creates a substantial risk of death or which

causes serious, permanent disfigurement, or protracted loss or impairment

of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.

      Where the victim does not suffer serious bodily injury, the
      charge of aggravated assault can be supported only if the
      evidence supports a finding of an attempt to cause such injury. A
      person commits an attempt when, with intent to commit a
      specific crime, he does any act which constitutes a substantial
      step toward the commission of that crime. An attempt under
      Subsection § 2702(a)(1) requires some act, albeit not one
      causing serious bodily injury, accompanied by an intent to inflict
      serious bodily injury. A person acts intentionally with respect to
      a material element of an offense when … it is his conscious
      object to engage in conduct of that nature of to cause such a
      result. As intent is a subjective frame of mind, it is of necessity
      difficult of direct proof. The intent to cause serious bodily injury
      may be proven by direct or circumstantial evidence.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012)

(internal citations and quotation marks omitted).

      Here, contrary to Appellant’s assertion, Wright identified Appellant as

her attacker. Although the nature of the attack left Wright unable to see

during much of the attack, Wright was able to reasonably infer that

Appellant was the perpetrator. Wright noted that Appellant was the only

person in the common room with a sheet prior to a sheet being tied around

her head. Further, Wright testified that there were only two other people in

the room with her prior to the attack, and Appellant was the only person

located in the position necessary to commit the initial attack. Additionally,



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although Wright was blindfolded with a sheet for most of the hits she

received to her head, she testified that the sheet slipped at one point, and

she was able to observe Appellant standing over her, and Appellant’s

bracelet broken on the floor next to Wright.

      Wright’s testimony was certainly enough for the Commonwealth to

show that Appellant was “probably the perpetrator” and fulfill its first

obligation in establishing a prima facie case.

      Further, we find that the Commonwealth has sufficiently established

the “commission of a crime” necessary to establish a prima facie case. Even

agreeing with Appellant purely for the sake of argument that the evidence

does not support a finding that Wright suffered serious bodily injury from the

attack, we find that there was enough evidence to support a finding that

Appellant intended to cause serious bodily injury to Wright during the attack.

Wright testified that she was blindfolded and repeatedly struck in the head.

Wright noted that Appellant only ceased hitting her in the head when she

told Appellant to take whatever she wanted.

      Based upon the nature of the incident and the totality of the

circumstances, it is reasonable to infer that the attack would have continued

if Wright had not offered items to Appellant. We find that this evidence

provided sufficient probable cause that Appellant intended to cause serious

bodily injury to Wright to support the allegation that Appellant committed an

aggravated assault. Thus, because probable cause is all that is needed to


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support a prima facie case, we find Appellant’s first issue on appeal to be

without merit.

      Next, Appellant challenges the public interest factor of 42 Pa.C.S.A. §

6355(a)(4)(iii), alleging that the Commonwealth failed to prove that the

public interest would be served by certifying Appellant to be tried as an

adult. See Appellant’s Brief, at 5-6, 9-22. Specifically, Appellant alleges that

the public interest would not be served by Appellant’s certification as an

adult for a number of reasons: (1) the impact of Appellant’s attack on the

victim was short term; (2) the community impact of Appellant’s offense was

minimal; (3) Appellant did not pose a threat to the safety of the public

through her commission of the offense; (4) the nature and circumstances of

the offense involved four girls, and Appellant, who was the youngest, was

the only girl certified as an adult; and (5) Appellant is amenable to

treatment as a juvenile. See id. None has merit.

      The Juvenile Act provides that a juvenile 14 years of age or older at

the time of the alleged crime, may have their case transferred to adult

criminal court for prosecution. See Commonwealth v. Rush, 562 A.2d

285, 286 (Pa. 1989). In order to support a transfer to criminal court, the

court must find, in pertinent part:

      (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;

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        (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 disposition 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;




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42 Pa.C.S.A. § 6355(a)(4)(iii). “Section 6355(g) places the burden of proof

upon the Commonwealth to establish, by a preponderance of the evidence,

that the public interest is served by the transfer of the case to criminal court

and that a child is not amenable to treatment, supervision, or rehabilitation

as a juvenile.” Commonwealth v. In re E.F., 995 A.2d 326, 331 (Pa.

2010) (citing 42 Pa.C.S.A. § 6355(g)).

      At the certification hearing, the juvenile court heard testimony from

the victim of Appellant’s attack, Wright, the Appellant’s probation officer,

Yeager, the Appellant’s social worker, McKee, and the Appellant’s mother, C.

The court also heard argument from the parties, evaluated Appellant’s

Children and Youth placement history, Appellant’s juvenile file, and

Appellant’s treatment history.

      The evidence presented by the Commonwealth provided that Appellant

was the main actor in a sophisticated criminal attack, which left its victim

with long-term psychological injuries. Appellant’s social worker noted that

Appellant had a long history of receiving services through Children and Youth

and that many of her placements were marked with assaultive and defiant

behaviors. Appellant’s juvenile probation officer testified that her review of

the Appellant’s prior delinquent behaviors and treatment history led her to

believe that Appellant was no longer amenable to treatment within the

juvenile system. Appellant presented evidence that she was the youngest of

four actors in the attack and suffered from a highly dysfunctional family life.




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      The record indicates that the juvenile court properly considered all of

these factors, as well as the additional factors required to be considered

under 42 Pa.C.S.A. § 6355(a)(4)(iii). In reviewing the determination reached

by the juvenile court in regards to Appellant, we note that

      [i]n the end, certification depends on a complex balancing of
      numerous factors, not the least of which is the general
      demeanor of the juvenile as observed by the juvenile court
      during the certification hearing, a factor which this Court is ill-
      equipped to evaluate on appeal. When a juvenile judge is
      provided with a comprehensive juvenile file and has the benefit
      of argument from prosecution and defense, both common sense
      and our Supreme Court’s precedent require that we assume the
      trial court duly considered the evidence and arguments
      presented. In such cases, our focus on review must be limited to
      whether the record as a whole reveals an abuse of discretion. ...

Commonwealth v. Saez, 925 A.2d 776, 781 (Pa. Super. 2007) (quoting

Commonwealth v. McDonald, 582 A.2d 328, 335 (Pa. Super. 1990)).

      While Appellant does not agree with the manner in which the juvenile

court weighed these factors, the weight given to the factors considered by

the juvenile court will not, and cannot, be overturned by this Court when

supported by evidence of record. Thus, we find that the juvenile court did

not abuse its discretion, and consequently, Appellant’s second issue on

appeal merits no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




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