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MOORE APPEAL (09/18/70)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 18, 1970.

MOORE APPEAL

Appeals from orders of Court of Common Pleas, Family Court Division, of Philadelphia, Nos. 39-69-33901, 19-69-80198, 23-69-58151, and 1-69-14563, in the matters of Matthew Jackson, a minor, Timothy Downs, a minor, Kenneth Moore, a minor, Maurice Murray, a minor, and Ellis Croft, a minor.

COUNSEL

Miriam L. Gafni, Assistant Defender, with her Paula S. Gold, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellants.

James D. Crawford, Deputy District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Watkins and Jacobs, JJ., dissent.

Author: Hoffman

[ 217 Pa. Super. Page 207]

Appellants were adjudged delinquent in the Juvenile Court of Philadelphia County, and subsequently placed on probation. In each of their cases, a timely petition for rehearing was filed alleging that errors of law and/or fact were committed and the order of the court was improvidently made. Each petition for a rehearing was denied. The question presented on appeal is whether, pursuant to the Juvenile Court Act, a rehearing is required after an order of probation.

Section 15 of the Juvenile Court Act is concerned with rehearings following adjudications of delinquency. The statute states in pertinent part: "Within twenty-one (21) days after the final order of any judge of the juvenile court, committing or placing any dependent, neglected or delinquent child, such child shall, as a matter of right, by his or her parent or parents or next friend, have the right to present to the court a petition to have his or her case or cases reviewed and reheard, if, in the opinion of such parent . . ., an error of fact or of law, or of both, has been made in such proceedings or final order, or if the said order has been improvidently or inadvertently made. Upon the presentation of such petition, the court shall grant such review and rehearing as a matter of right. . . ." Act of June 2, 1933, P. L. 1433, § 15, 11 P.S. § 257 (emphasis added.). That is, rehearing in a juvenile case is not discretionary following a final order of commitment or placement. In the interests of assuring the most appropriate

[ 217 Pa. Super. Page 208]

    disposition, an adjudicated juvenile is entitled as a matter of right to bring forth any further considerations he may have.

More narrowly expressed, the issue here is whether an order of probation is a final order of commitment or placement. The orders which a hearing judge may make are set out in section 8 of the Act, as amended, and comprehend a wide variety of custodial situations. He may allow the child to remain in the home, or place him under the guidance of a reputable citizen, subject to the supervision of a probation officer; or he may commit the juvenile to a suitable institution, industrial training school, or reformatory. The wording and structure of the Act indicate that the legislature intended no different procedure with regard to each of the listed dispositions. There is no reason why any of the choices of disposition available to the hearing judge is any less a "final order" than the others for the purposes of a section 15 rehearing. All the orders, including probation, constitute some interference with the adjudicated youth's civil liberty.

In addition, section 16 of the Act uses similar language with regard to rehearings. It provides in pertinent part: "If, at any time after the final order of any juvenile court placing or committing any dependent, neglected or delinquent child, a change of circumstances has taken place which, in the opinion of the parent . . ., warrants the revocation or modification of such final order, such child shall . . . have the right to file a petition in such court asking for a revocation or modification of such final order.

" It shall be the duty of such courts or judges to give a full and proper hearing on such petitions." (emphasis added.) An order "placing" a juvenile on probation would obviously be subject, in certain circumstances, to "revocation or modification" under this section.

[ 217 Pa. Super. Page 209]

    affecting a juvenile. The Court's special responsibility in dealing with juveniles demands careful consideration to assure that harm will not result from an unwise adjudication. It is this fundamental, moral obligation which underlies and supplies the true basis for the rehearing provisions contained in § 15 of the Juvenile Court Law." (original emphasis)

Probation is "punishment" for double jeopardy purposes, and "[i]t is unquestionably a restriction on the defendant's freedom and a deprivation of his liberty within the meaning of the Fourteenth Amendment." Commonwealth v. Vivian, 426 Pa. 192, 200, 231 A.2d 301, 305 (1967). While on probation the juvenile is subject to the control of the court and the probation officer until he is twenty-one years old, unless sooner discharged. Probation subjects the juvenile to physical restraints on his freedom in that he may not leave the area without permission and must systematically report to a probation officer. A violation of probation may result in institutionalization even if there is no other act of delinquency.

Whether the juvenile is merely placed on probation and allowed to stay in his own home or sent off to a reformatory, the basic decision is that he has been adjudicated delinquent. The stigma will remain with him. Thus, the rehearing is also to carefully reconsider the adjudication, not just the disposition.

The Commonwealth argues that juvenile probation is not "legally damaging" because no civil or criminal disability results from an adjudication. However, a prior adjudication of delinquency can be taken into consideration when sentencing for a later criminal conviction. Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224, 144 A.2d 367 (1958). Realistically, an adjudicated juvenile will find his past record a great hindrance to him in obtaining public or private employment

[ 217 Pa. Super. Page 211]

    or in joining the armed services. Certainly, there is as great a need for an intensive review of an adjudication culminating in a probationary disposition as in one which results in the juvenile being committed to an institution or home.

Accordingly, the order of the lower court denying a rehearing is vacated and the record is remanded for a rehearing consistent with this opinion.

Disposition

Orders vacated and record remanded.

19700918

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