J-A26021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.A.C., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.A.C., A MINOR                 :
                                               :
                                               :
                                               :
                                               :   No. 302 WDA 2019

                Appeal from the Order Dated February 19, 2019
     In the Court of Common Pleas of Allegheny County Juvenile Division at
                        No(s): CP-02-JV-0001366-2018


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 26, 2019

        A.A.C. appeals from the dispositional order1 adjudicating him delinquent

after he admitted to committing one count each of causing a catastrophe, 2

risking a catastrophe,3 criminal mischief,4 and theft by unlawful taking,5 two




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1 In juvenile proceedings, the final order from which a direct appeal may be
taken is the order of disposition, entered after the juvenile is adjudicated
delinquent. See Commonwealth v. S.F., 912 A.2d 887, 888-89 (Pa. Super.
2006).

2   18 Pa.C.S § 3302(a).

3   18 Pa.C.S. § 3302(b).

4   18 Pa.C.S. § 3304(a)(1).

5   18 Pa.C.S. § 3921(a).
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counts each of arson6 and recklessly endangering another person (REAP),7

and nine each of counts of burglary8 and criminal trespass.9          After careful

review, we vacate, reverse and remand.

        The events leading to the above adjudications involved A.A.C. and his

brother (boys) intentionally breaking into Clearfield County camps at a

campground,10 stealing a golf cart and fuel-burning torches and lighters,

attempting to burn the locks off several campers, stealing a hammer and using

it to smash locks and door knobs of camps, and setting off fireworks near

campers. N.T. Finding of Fact and Transfer Proceedings, 5/21/15, at 2-3. The

particular incident leading to their arrests involved the boys lighting a firework

and lobbing it over a truck parked in the driveway to a camper. Although the

boys claimed they did not think that the firework ever exploded, it did set fire

to leaves. The fire ultimately spread throughout the campgrounds, completely

burning down an occupied camper.11             Id. at 3.   The boys unsuccessfully

attempted to hook up a hose to a nearby spigot to extinguish the fire.       Id.

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6   18 Pa.C.S. §§ 3301(a)(i), (ii) (arson endangering persons).

7   18 Pa.C.S. § 2705.

8   18 Pa.C.S. § 3502(a)(2).

9   18 Pa.C.S. § 3503(A1)(i).

10 A.A.C.’s family had been owners of a campsite for five to six years at the
time of the instant incident. N.T. Finding of Fact and Transfer Proceedings,
5/21/15, at 11.

11 Fortunately, the people occupying the camper were able to escape without
injuries. They, however, lost all the contents of the camper.
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        On May 19, 2015, a juvenile petition was filed against A.A.C. in Clearfield

County for the above-stated crimes; A.A.C. was held in the Clearfield County

detention facility until his “Finding of Fact” hearing on May 21, 2015. At the

hearing, A.A.C. tendered an admission to 26 counts including arson, causing

or risking catastrophe, criminal mischief, burglary, criminal trespass and

REAP.     At the conclusion of the hearing, the trial judge, Clearfield County

President Judge Fredric J. Ammerman, transferred the matter to Allegheny

County, where A.C.C. resides, for adjudication and disposition.           See 42

Pa.C.S. § 6321(c)(1). On July 24, 2015, A.C.C. filed a motion to withdraw his

admission in Clearfield County through his attorney, George L. Saba, Esquire,

of the Allegheny County Office of the Public Defender.         On September 16,

2015, Judge Ammerman issued an order dismissing counsel’s motion.

        In January 2016, A.A.C. was admitted to a mental health facility, Glade

Run, where he successfully completed a treatment program in August 2016.

On February 13, 2017, following a hearing, Allegheny County Judge Arnold

Klein transferred the matter back to Clearfield County due to A.A.C.’s wish to

withdraw his admission in the case. Judge Klein ordered the Clearfield County

trial court hold a Pa.R.J.C.P. 409(A)12 hearing on the matter. On January 26,

2018, Judge Ammerman dismissed Judge Klein’s order, concluding that

Allegheny County was not the proper venue within which to seek to withdraw

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12See Pa.R.J.C.P. 409(A) (once court has ruled on offenses, court conducts
hearing to determine if juvenile is in need of treatment, supervision, or
rehabilitation).

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A.A.C.’s Clearfield County admission. On October 25, 2018, the Allegheny

County trial court held an inter-county adjudication/commitment review

hearing, following which it scheduled the adjudicatory hearing for January

2019.

        On January 28, 2019, Judge Paul. E. Cozza of the Allegheny County

Court of Common Pleas presided over A.C.C.’s adjudicatory hearing, finding

A.A.C. delinquent and in “need [of] additional treatment and rehabilitation.”

N.T. Inter-County Adjudicatory/Commitment Review, 1/28/19, at 6, 15. The

court placed A.A.C. on probation, ordering him to attend the Auberle Tapp-C

program13 and to pay court costs and $6,864 in restitution to his victims. The

court also ordered that A.C.C. “have no verbal or physical, direct, or indirect

contact with” the victims of his acts and that he not “be on or in close or

adjacent proximity to the [victims’] residence or business property.”       No-

Contact Order, 1/28/19.            At the dispositional hearing in January 2019,

evidence was presented to show that A.A.C. had graduated from McKeesport

High School and the Job Corps, was working at a full-time position in security,

and had incurred no further delinquent or criminal charges since the instant

offenses.

        On January 30, 2019, A.A.C. filed a timely post-dispositional motion for

reconsideration. The court held a hearing on the motion and, on February 19,




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13 This program is offered to juveniles who have been adjudicated of arson-
related crimes.
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2019, denied the motion. A.A.C. filed a timely notice of appeal and Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

      On appeal, A.A.C. presents the following issues for our review:

      (1)   Whether the juvenile court erred in adjudicating A.[A.]C.
            delinquent when the Commonwealth failed to demonstrate
            that A.[A.]C. was in need of treatment, supervision, or
            rehabilitation.

      (2)   Whether the juvenile court erred by preventing A.[A.]C from
            eliciting testimony regarding the underlying nature of the
            incident when determining whether A.[A.]C. was in need of
            treatment, supervision, or rehabilitation.

Appellant’s Brief, at 7.

      “The Juvenile Act grants juvenile courts broad discretion when

determining an appropriate disposition[.] We will disturb a juvenile court’s

disposition only upon a showing of a manifest abuse of discretion.” In re

T.L.B., 127 A.3d 813, 817 (Pa. Super. 2015). An adjudication of delinquency

requires the juvenile court to find that the juvenile:   (1) has committed a

delinquent act and (2) is in need of treatment, supervision, or rehabilitation.

Commonwealth v. M.W., 39 A.3d 958, 959 (Pa. 2012). “A determination

that a child has committed a delinquent act does not, on its own, warrant an

adjudication of delinquency.” Id. at 966. Finally, it is the Commonwealth’s

burden to prove beyond a reasonable doubt that the juvenile is in need of

treatment, supervision or rehabilitation. In the Interest of N.C., 171 A.3d

275, 283 (Pa. Super. 2017).

      In M.W., our Supreme Court noted:

      Under the Juvenile Act, 42 Pa.C.S. § 6321(a)(3), a juvenile
      proceeding may commence when a petition is filed indicating a

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      juvenile has committed delinquent acts. After the filing of a
      petition, the juvenile court holds an adjudicatory hearing at which
      evidence on the petition for delinquency is heard. After hearing
      the evidence on the petition for delinquency, the court shall make
      and file its findings as to whether the acts ascribed to the child
      were committed by him. 42 Pa.C.S. § 6341(a). If the court finds
      that the allegations of delinquency have not been established, it
      shall dismiss the petition and order the child discharged from any
      detention or other restriction theretofore ordered in the
      proceeding. Conversely, if the court finds on proof beyond a
      reasonable doubt that the child committed the acts by reason of
      which he is alleged to be delinquent, it shall enter such finding on
      the record and shall specify the particular offenses, including the
      grading and counts thereof which the child is found to have
      committed. [42 Pa.C.S.] § 6341(b).

      After the juvenile court has entered an adjudication of delinquency
      on the record, the court must hold a hearing to determine a
      disposition which is “consistent with the protection of the public
      interest and best suited to the child's treatment, supervision,
      rehabilitation, and welfare[.]” 42 Pa.C.S.A. § 6352(a).

Id. at 960.

      Moreover, if the court determines that the juvenile committed the acts

alleged in the delinquency petition, “the court must, within 20 days if the child

is in detention or within 60 days if the child is not in detention, ‘hear evidence

as to whether the [juvenile] is in need of treatment, supervision or

rehabilitation and [] make and file its findings thereon.’” Commonwealth v.

M.W., 39 A.3d 965 (Pa. 2012), citing 42 Pa.C.S. § 6314(b). “This is a separate

and distinct finding from whether the child committed the acts alleged.” Id.

Finally, “[i]n the absence of evidence to the contrary, evidence of the

commission of acts which constitute a felony shall be sufficient to sustain a

finding that the child is in need of treatment, supervision or rehabilitation. If

the court finds that the child is not in need of treatment, supervision or


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rehabilitation it shall dismiss the proceeding and discharge the child from any

detention or other restriction theretofore ordered.” 42 Pa.C.S. § 6341(b).

      Under Pennsylvania Rule of Juvenile Court Procedure 407(A)(1):

      (a) [B]efore [a] court can accept an admission [from a juvenile],
      the court shall determine that the admission is knowingly,
      intelligently, and voluntarily made.

                                   *     *     *

      (c) At [a] hearing, the court shall conduct an independent inquiry
      with the juvenile to determine:

         (i) whether the juvenile understands the nature of the
         allegations to which he or she is admitting and understands
         what it means to admit;

         (ii) whether the juvenile understands that he or she has the
         right to a hearing before the judge and understands what
         occurs at a hearing;

         (iii) whether the juvenile is aware of the dispositions that
         could be imposed and the consequences of an adjudication
         of delinquency that can result from an admission;

         (iv) whether the juvenile has any questions about the
         admission; and

         (v) whether there are any other concerns apparent to the
         court after such inquiry that should be answered.

Pa.R.J.C.P. 407(A)(1)(a), (c)(i-v) (emphases added). A Rule 407 admission

colloquy serves to ensure that the juvenile is making his or her admission

“knowingly, intelligently, and voluntarily.”   See Pa.R.J.C.P. 407, Comment

(“The admission colloquy is similar to a guilty plea colloquy in criminal court;

however, the juvenile court judge has special responsibilities under the

Juvenile Act in providing a balanced attention to the protection of the

community, the imposition of accountability for delinquent acts committed,

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and the development of competencies to enable juveniles to become

responsible and productive members of the community. See 42 Pa.C.S. §

6301.”).

        Here, at the Clearfield County Finding of Fact/Transfer hearing, the

judge stated, “[w]e’ll go with the finding of fact and the transfer.” N.T. Finding

of Fact and Transfer Hearing, 5/21/15, at 19. The court heard testimony from

A.A.C.’s mother and the victims who occupied the destroyed camper.            The

court never conducted the requisite Rule 407(A)(1)(c) inquiry with A.A.C. In

fact, A.A.C.’s attorney states in his brief, “[u]nfortunately, the transcript of

the findings-of-fact/admission hearing reveals that Judge Ammerman never

conducted an independent inquiry with A.[A.]C., in violation of Rule

407(A)(1)(c). In fact, A.[A.]C. never uttered even a single word on the record

throughout the hearing.” Appellant’ Brief, at 12-13 n.10 (emphases added).

Moreover, there is nothing in the record to indicate that the judge ever

reviewed A.A.C.’s written colloquy,14 which the Comment to Rule 407 indicates

“serves as an aid for the court in making its determination that the admission

is knowingly, intelligently, and voluntarily made.” Pa.R.J.C.P. 407, Comment.

        We find these omissions to be reversible error, especially where A.A.C.

repeatedly attempted to withdraw his admission and those requests were

summarily denied. Because the Clearfield County trial court failed to comply


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14   A copy of the form is also not contained in the certified record on appeal.



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with the requirements of Rule 407(A)(1)(c), A.A.C.’s admission was not

tendered knowingly, intelligently, and voluntarily.15 Accordingly, we vacate

the February 19, 2019, dispositional order, reverse the adjudication of

delinquency, and remand the matter to the juvenile court for a new

adjudicatory hearing consistent with this memorandum.16

       Dispositional order vacated.            Adjudication of delinquency reversed.

Case remanded. Jurisdiction relinquished.17

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15 To compound the error, the trial judge in Allegheny County found that
“because of their admission[s] in Clearfield County, I have no choice but to
find them delinquent of all these counts.”               N.T. Inter-County
Adjudicatory/Commitment Review, 1/28/19, at 16.

16We also note that there is nothing in the certified record from the finding of
fact/transfer hearing to indicate that the juvenile judge complied with 42
Pa.C.S. § 6341 and made and filed his findings “as to whether the acts
ascribed to the child were committed by him.” 42 Pa.C.S. § 6341(a).
17 On remand, we remind the court to not only perform a thorough colloquy,
but to ensure that the appropriate charges are brought based on the
allegations. Instantly, the court found that A.A.C. admitted to committing
arson under both 18 Pa.C.S. §§ 3301(a)(1)(i) and (ii). Subsection (a)(1)(ii)
requires that the actor commit the act “with the purpose of destroying or
damaging an inhabited building or occupied structure.”           18 Pa.C.S. §
3301(a)(1)(ii) (emphasis added). However, the Clearfield County trial judge
stated that “I understand and it certainly appears that . . . the[se juveniles]
didn’t intend to burn down the place,” but, rather, it was “just extreme
recklessness.” N.T. Finding of Fact and Transfer Proceeding, 5/21/15, at 15
(emphasis added). Even if A.C.C. had the intent to cause an explosion by
igniting and throwing the firework over the truck, this would fall under
subsection (a)(1)(i), not (a)(1)(ii).

Moreover, we note the trial court’s statement in its Rule 1925(a) opinion that
“it is standard practice in this court, as well as most others in Allegheny County
Juvenile Division, that a fire-setter’s treatment program be included in any
disposition.” Trial Court Opinion, 4/29/19, at 5 (emphasis added). It is well


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2019




____________________________________________


established that “the burden remains with the Commonwealth to prove the
juvenile is in need of treatment, supervision, or rehabilitation.” See In the
Interest of N.C., 171 A.3d 275, 281 (Pa. 2017). Here, there is a dearth of
evidence proving that A.A.C. needs fire-setting treatment, especially when his
arson conviction appears to be infirm, almost three years have elapsed since
his admission, and he has voluntarily undergone mental health treatment,
successfully completed high school, enrolled in the Job Corps and graduated
from that program, and holds a job as a security subcontractor. Moreover,
we caution the trial court that it must employ an individualized approach when
considering whether a specific juvenile needs treatment, supervision, or
rehabilitation. Such an approach recognizes that “involvement with the
juvenile delinquency system has significant consequences for a juvenile,
including the potential loss of liberty.” Id. at 283.


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