J-S08004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TAYMAR YOUNG

                            Appellant                 No. 628 WDA 2015


      Appeal from the Judgment of Sentence Entered December 18, 2014
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0004513-2014


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED JULY 19, 2016

        Appellant Taymar Young appeals from the judgment of sentence

entered in the Court of Common Pleas of Allegheny County (“trial court”),

following a jury trial that resulted in him being convicted of robbery—serious

bodily injury—and conspiracy to commit robbery.1 Upon review, we affirm.

        The facts and procedural history of this case are undisputed.      As

summarized by the trial court:

              On January 13, 2014, Keyshawn Alford, an eleventh grader
        at Westinghouse High School, was walking home from school
        with Jamier Lane, his good friend and football teammate. As the
        two (2) young men exited the front door of the school, Jamier
        noticed a suspicious group of four (4) men standing across the
        street. The group caught his attention because they were not
        dressed in school uniforms, and they did not look like they
        belonged in the area. Their presence made Jamier nervous, and
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1
    18 Pa.C.S.A. §§3701(a)(1)(ii) and 903(a)(1), respectively.
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     he told Keyshawn that they should wait a few minutes to see if
     the group would leave. The two (2) young men waited for the
     group to walk down Murtland Avenue and up Hermitage Street
     before they started walking quickly along the same route.
     Although the group was initially walking in front of them,
     Keyshawn and Jamier eventually caught up with the group,
     passing it when they were near Hermitage Street.
            By the time the boys arrived at Kedron Street, Keyshawn
     and Jamier had separated somewhat, with Keyshawn walking a
     few yards ahead of Jamier. Keyshawn began to feel as though
     he was in danger because “it was too quiet.” He turned around
     and saw [Appellant], and Shaquille West, his co-[d]efendant,
     standing behind him. Although he did not know his name at the
     time, Keyshawn recognized Mr. West as someone who had dated
     his friend. [Appellant] pushed Keyshawn and asked him, “What
     do you got ?” Keyshawn stated that he did not have anything,
     pointed to something in the street in an attempt to distract the
     men, and then ran.
           The [c]o-[d]efendant, Mr. West, chased Keyshawn down
     the street, caught up to him, and tackled him. After the tackle,
     Keyshawn was able to regain his footing, but Mr. West was still
     able to drag him over to some bushes and hold on to him.
     [Appellant] then reappeared and began punching Keyshawn in
     the head and face. As Keyshawn was trying to defend himself,
     he heard [Appellant] say “give me a joint,” which Keyshawn
     understood to mean that [Appellant] wanted Mr. West to give
     him a gun. [Appellant] took possession of a black firearm and
     pointed it at Keyshawn’s stomach, informing Keyshawn that the
     gun was, in fact, loaded. At that point, Keyshawn believed that
     a police cruiser happened by the area because Mr. West turned
     to [Appellant] and said “come on, hurry up.” [Appellant] put the
     gun away and started walking away with his [c]o-[d]efendant.
            As [Appellant and the co-d]efendant[] were leaving,
     [Appellant] in this case handed the firearm to his co-
     [d]efendant, Mr. West. Mr. West turned around, waved the gun
     at Keyshawn, and said, “If you tell anybody, I got something for
     you.” Keyshawn waited until [Appellant] and [c]o-[d]efendant
     walked away before he and Jamier went to his grandmother’s
     house. Keyshawn was later treated at UPMC Children’s Hospital
     of Pittsburgh for a mild concussion and some minor scrapes and
     bruises.
          Keyshawn subsequently located Mr. West’s Facebook page,
     immediately recognizing him as one of the people that robbed
     him and pointed a gun at him. He was able to find Mr. West on
     Facebook because they shared mutual friends.             Once he
     accessed Mr. West’s Facebook page, he scrolled through Mr.
     West’s list of Facebook friends and located [Appellant], whom he
     immediately recognized from the robbery.



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Trial Court Opinion, 7/30/15, at 3-6. Appellant subsequently was charged

with robbery and conspiracy to commit robbery.          Claiming that he was

sixteen years old, on April 11, 2014, Appellant filed a decertification motion,

seeking a transfer to the juvenile court. Following a decertification hearing,

the trial court denied the transfer motion on September 5, 2014.

Thereafter, Appellant’s case proceeded to a jury trial, following which

Appellant was found guilty of the above-mentioned offenses. The trial court

sentenced Appellant to, inter alia, 48 to 96 months’ incarceration. Appellant

timely appealed to this Court.      Following Appellant’s filing of a Pa.R.A.P.

1925(b) statement, the trial court issued a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant raises only two issues for our review:

      1. Whether       the  juvenile   decertification   process    is
         unconstitutional as it does not allow for the minor child to
         have a jury conclude beyond a reasonable doubt that the
         juvenile should be subjected to an adult penalty beyond the
         juvenile statutory maximum penalty in violation of the minor
         child’s Sixth Amendment rights[.]
      2. Whether placing the burden of proof on a juvenile defendant
         in a decertification process violates both the juvenile’s
         procedural and substantive due process rights[.]

Appellant’s Brief at 3.

      Initially, we note that an appellant bears a heavy burden to prove a

statute unconstitutional. “[A] statute is presumed to be constitutional and

will not be declared unconstitutional unless it clearly, palpably and plainly

violates the Constitution.”   Commonwealth v. Cotto, 753 A.2d 217, 219

(Pa. 2000).    Additionally, “there is no constitutional guarantee to special

treatment for juvenile offenders.     Any right to treatment as a juvenile is

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derived from statutory law and is defined by the legislature.” In Interest

of J.F., 714 A.2d 467, 470 (Pa. Super. 1998).

      The legislature, through the Juvenile Act, placed adjudication of

delinquent acts when the defendant is a child automatically within the

jurisdiction of juvenile court.   42 Pa.C.S.A. § 6322(a).   However, Section

6302 of the Juvenile Act excludes robbery from the definition of a delinquent

act where, as in this case, a deadly weapon was used in the commission of

the offense. See 42 Pa.C.S.A. § 6302 “Delinquent Act” (2)(ii)(D); see also

18 Pa.C.S.A. § 3701 (relating to robbery).        Prosecution for an offense

excluded from the definition of a delinquent act commences in criminal court

rather than in juvenile court.        42 Pa.C.S.A. § 6322(a); see also

Commonwealth v. Ramos, 920 A.2d 1253, 1258 (Pa. Super. 2007)

(“[W]hen the crime involved is one excluded from the Juvenile Act’s

definition of a delinquent crime, the charge is automatically within the

jurisdiction of the criminal court and jurisdiction is presumptively proper.”),

appeal denied, 932 A.2d 1288 (Pa. 2007).

      When a criminal court has jurisdiction over a crime committed by a

juvenile pursuant to 42 Pa.C.S.A. § 6322(a), the juvenile may request that

her case be decertified, i.e., removed to the jurisdiction of juvenile court.

Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003)

appeal denied, 827 A.2d 430 (Pa. 2003). This process has been upheld as

constitutional by this Court and our Supreme Court. See Cotto, 753 A.2d at

217, 222 (holding as constitutional the 1995 Amendments to the Juvenile

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Act which vest original jurisdiction in the criminal courts for specified violent

felonies and grant the decision-maker discretion in determining whether to

transfer a direct file case to juvenile court); see also Commonwealth v.

Aziz, 724 A.2d 371, 374 (Pa. Super. 1999) (“We find that the amendments

to the Act, which cause juveniles accused of the enumerated offenses to

appear first in criminal court, are not arbitrary and instead are rationally

related to the statute’s objectives.”), appeal denied, 759 A.2d 919 (Pa.

2000).

      Appellant    first   argues      that   the   decertification    process   is

unconstitutional as violating the Sixth Amendment to the United States

Constitution because a judge, rather than a jury, decides decertification.

Appellant bases this claim on our United States Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000) which, in his words,

“conclude[es] that a sentencing factor that has the potential to enhance the

punishment triggers Sixth Amendment protections. . . .” Appellant’s Brief at

11. Essentially, Appellant argues that the denial of decertification is a factor

that could enhance a sentence beyond the statutory maximum allowed for a

juvenile,   and   therefore,   under    Apprendi,    only   a   jury   may   deny

decertification. Id. at 17.

      The United States Supreme Court’s decision in Apprendi concerned a

statute that authorized a judge to increase the maximum sentence after a

jury’s verdict based on the judge’s finding, by a preponderance of the

evidence, of the fact that the crime was racially motivated. Apprendi, 120

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S.Ct. at 2348. We previously summarized the rule established by Apprendi

and its progeny as follows:

         In the watershed Apprendi case, the Supreme Court held that
         any fact except a prior conviction that increases the range of
         punishment beyond the statutory maximum penalty for that
         crime must be charged in an indictment, submitted to the jury,
         and proven beyond a reasonable doubt. The Court further
         defined the term statutory maximum in Blakely v.
         Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
         (2004). According to the Blakely Court, the statutory maximum
         is the maximum sentence a court can impose based solely on
         the facts reflected by the jury verdict or admitted by the
         defendant during his guilty plea.

Commonwealth v. Stokes, 38 A.3d 846, 858-59 (Pa. Super. 2011).

         Appellant’s reliance on Apprendi is misplaced. Decertification is a

legislatively established procedure whereby a judge must consider a

juvenile’s amenability to treatment within the juvenile system as delineated

by statutorily defined factors. 42 Pa.C.S.A. § 6355(a)(4)(iii). Decertification

is not a fact that increases the maximum penalty that may be imposed as

already determined by a jury’s verdict or an accused’s guilty plea. Indeed, a

judge does not make any findings of fact regarding elements of the crimes

charged during the decertification process. Further, there is no jury involved

in this process. Apprendi, therefore, is factually and legally distinguishable

from the instant case. As such, Appellant is not entitled to relief on his first

issue.

         Appellant next argues that placing the burden of proof on a juvenile

defendant     in   the   decertification   process   violates   both   the   juvenile’s




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procedural and substantive due process rights.          In Cotto, our Supreme

Court addressed and rejected this issue and held as follows.

       [T]he legislature has determined in its judgment that, in certain
       instances, violent felonies in addition to murder are sufficiently
       serious to merit vesting original jurisdiction in the criminal
       courts, while affording the defendant an opportunity to show
       that his is the exceptional case warranting juvenile treatment.
        ....
       . . . [T]he legislature’s informed determination that juveniles
       fifteen years of age and older who commit such offenses are not
       initially amenable to rehabilitation under the Juvenile Act, unless
       they prove otherwise by a preponderance of the evidence, is
       equally reasonable. There is nothing in the Constitution to
       prevent the legislature from making such a judgment.

Cotto, 753 A.2d at 223-24.

       Appellant acknowledges that Cotto is controlling on this issue, but

asks us to reconsider our Supreme Court’s holding. Appellant’s Brief at 22.

This Court, however, has a “duty and obligation to follow the decisional law

of [the Supreme Court of Pennsylvania].” Commonwealth v. Shaffer, 734

A.2d 840, 844 n.6 (Pa. 1999).             Because Cotto considered and resolved

Appellant’s second issue, we are bound by our Supreme Court’s holding in

Cotto, and Appellant is not entitled to relief on this claim.2

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2
  To the extent that Appellant relies on Roper, Graham, and Miller to
support his argument that “juveniles are constitutionally distinct from
adults,” and therefore it is unconstitutional to shift the burden of proof in
decertification onto juvenile defendants, these cases are easily
distinguishable from the one sub judice as the foregoing only address
juvenile sentencing. Appellant’s Brief at 21; Commonwealth v. Batts, 125
A.3d 33, 37 (Pa. Super. 2015). None of these cases pertain to the juvenile
decertification process.



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      Based on the foregoing, we cannot conclude that Appellant is entitled

to relief on appeal.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2016




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