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decided: July 7, 1975.



Michael B. Kean, West Chester, for appellant.

Robert S. Gawthrop, III, Asst. Dist. Atty., West Chester, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result.

Author: Jones

[ 462 Pa. Page 616]


Appellant, William Jeffrey Pyle, seventeen years of age, was arrested for the shooting death of his father, William M. Pyle, on July 25, 1973. Following his arrest on the charge of criminal homicide, appellant petitioned the Chester County Common Pleas Court to transfer the matter to Juvenile Court for further action pursuant to the provisions of the Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333, § 7, 11 P.S. § 50-303 (Supp.1974-75). Thereafter, on August 15, 1973, a rule was entered upon the Chester County District Attorney, to show cause why the charge should not be transferred. At that time the Commonwealth announced the filing of a juvenile charge of theft against appellant*fn1 and petitioned the court to transfer this latter charge for adult criminal prosecution, pursuant to the Juvenile Act, id. § 28, 11 P.S. § 50-325. After a full counseled hearing, the lower court discharged the rule and granted the Commonwealth's application for transfer.*fn2 Thereafter, proceeding in the Criminal Division of the Common Pleas Court, appellant pled guilty to both charges. Appellant's degree of guilt was subsequently fixed at murder in the second degree and following the gathering and review of

[ 462 Pa. Page 617]

    comprehensive pre-sentencing reports, appellant was sentenced to pay a fine of five hundred dollars ($500.00) and to serve a term of not less than six (6) nor more than sixteen (16) years at an institution to be designated by state authorities. On the related charge of theft, he was sentenced to pay a fine of one hundred dollars ($100.00).*fn3

In this appeal, appellant argues that the lower court erred in determining that there were reasonable grounds to believe he was not amenable to treatment, supervision or rehabilitation within the juvenile court system. (See Juvenile Act, id. § 28, 11 P.S. § 50-325(a)(4)(i)). Accordingly, he contends that disposition of his case should have been made in the Juvenile Court.*fn4 We disagree.

This is the first case to be appealed to this Court involving the new criminal transfer section, Section 7, of the Juvenile Act. This section provides:

"§ 50-303. Criminal proceedings; transfer

If it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this

[ 462 Pa. Page 618]

    act shall immediately become applicable, and the judge shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the Family Court Division or to a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this act applied. . . ." (Emphasis added).

Under the former Juvenile Court Law, Act of June 2, 1933, P.L. 1433, as amended, 11 P.S. §§ 243-268, there was no allowance for transfer in cases of murder. Once a prima facie case of felonious homicide was made out, the lower court judge had no alternative but to hold the juvenile for further proceedings in the criminal courts. Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968). See also Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973); Commonwealth v. James, 440 Pa. 205, 269 A.2d 898 (1970); Commonwealth v. Moore, 440 Pa. 86, 270 A.2d 200 (1970); Commonwealth v. McIntyre, 435 Pa. 96, 254 A.2d 639 (1969). Now, under the new statute, the determination of whether the interests of state and society require prosecution of murder on an indictment is within the sound discretion of the Common Pleas Court. Compare Act of June 2, 1933 P.L. 1433, amendments of June 15, 1939, P.L. 394, 11 P.S. § 256; Commonwealth v. Pouls, 198 Pa. Super. 595, 182 A.2d 261 (1962); Commonwealth ex rel. Firmstone v. Myers, 184 Pa. Super. 1, 132 A.2d 707, cert. den. 355 U.S. 962, 78 S.Ct. 550, 2 L.Ed.2d 537 (1957); Trignani's Case, 150 Pa. Super. 491, 28 A.2d 702 (1942).

Where murder is charged, treatment as a "youthful offender" still does not arise as a matter of right. Nevertheless, the fact that the legislature has widened the avenue for juvenile treatment indicates a belief that there

[ 462 Pa. Page 619]

    will be instances where the young offender's need for care, guidance and control as a juvenile outweighs the state and society's need to apply legal restraint and discipline as an adult. The new Juvenile Act, however, does not specifically address the issue of how the court should proceed and by what standards it should determine when in cases of murder transfer of jurisdiction is warranted.

While noting this lack of guidance, the lower court in the instant case, in an attempt to remain within the framework of the new Act, determined that the appropriate standards and procedure for deciding the question of transfer were those set forth in subsection 28(a) of the Juvenile Act.*fn5 Although we agree that this subsection informs the parties of the type of criteria that should be considered before any transfer is made, we

[ 462 Pa. Page 620]

    find that the strict application of this subsection in cases of murder places an unnecessary burden on the Commonwealth.

Initially, we note that subsection 28(a) by its very language only addresses the issue of transfer where a petition alleging delinquency has been filed*fn6 and certification to the criminal court is thereafter requested. Nowhere in either Section 7 or Section 28 is there a mandate or even suggestion that the procedures and standards outlined in subsection 28(a) apply when a Section 7 certification to the juvenile court is requested. Nevertheless, since subsection 28(a) is the only expression of legislative intent directed to the transfer question and since like purposes are served by a subsection 28(a) transfer and retention of jurisdiction under Section 7, we believe consideration of Section 28(a) is necessary here.

As one commentator recently noted, subsection 28(a) contains a codification of those requirements outlined by the United States Supreme Court in the landmark decision of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).*fn7 In Kent, the Supreme Court reviewed the special rights and immunities conferred on the juvenile in a juvenile adjudicatory proceeding,*fn8 and concluded that in view of the important

[ 462 Pa. Page 621]

    procedures and benefits conferred,*fn9 the decision whether to criminally prosecute the juvenile in the adult court is a "critically important" one. 383 U.S. at 560, 86 S.Ct. 1045. Consequently, in order to try in a criminal court any person who might qualify as a juvenile, the waiver into such criminal court must be in a manner conforming to due process of law.*fn11

Although the Kent decision and subsection 28(a) involve the "waiver of the original and exclusive jurisdiction of the juvenile court," we believe an adult criminal court, when dealing with a person who might potentially qualify for treatment as a juvenile, must follow the same due process requirements. The privileges of juvenile jurisdiction, although not conferred in the first instance, are potentially as important to the youth accused of murder as the youth accused of delinquency. Assuming there are those who would initially be within the jurisdiction of the criminal court and who would be deserving of transfer, the only way to insure that such juveniles are not arbitrarily denied access to juvenile treatment is to insist that they be given the same procedural rights.

[ 462 Pa. Page 622]

In the instant case, appellant received the necessary procedural safeguards. However, the court went one step beyond guaranteeing a "fair hearing" when it required that a full subsection 28(a) determination be made. Once finding a prima facie case of murder, it was not necessary to make the "negative inquiry" found in subsection 28(a)(4). By placing the questions in such a posture, the lower court incorrectly assumed, that in every case where a transfer is requested, the Commonwealth has the burden of disproving that the juvenile court is entitled to jurisdiction over the juvenile.*fn12

Murder had always been excluded from the jurisdiction of the juvenile courts. See Act of July 12, 1913, P.L. 711, § 11, as amended, 17 P.S. § 694, Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968). See also Mont. Appeal, 175 Pa. Super. 150, 103 A.2d 460 (1954). Having continued to place murder, even where a young offender is involved, within the original and exclusive jurisdiction of the adult court, the assumption that the need for adult discipline and legal restraint exists in cases of this heinous nature also continues. With this in mind it becomes the juvenile's burden to show that he does not belong in the criminal court.*fn13 In other words, it is the youth who must prove that he belongs in the juvenile setting

[ 462 Pa. Page 623]

    by showing his need and amenability to the "program of supervision, care and rehabilitation" which he would receive as a juvenile.*fn14 In the event the evidence does not affirmatively demonstrate that he is the kind of youth who would benefit from the special features and programs of the juvenile court system and in the event no special reason exists for sparing the youth from adult prosecution and punishment (as for instance, evidence of mental illness or retardation) jurisdiction would necessarily remain within the criminal court system.

In the instant case, the appellant based his transfer request on his need for psychiatric treatment. The evidence presented by appellant tended to corroborate that he was "emotionally unstable," and that his problems were "deep-seated" and "capable of producing the most dangerous of consequences." Nevertheless, there was no indication that juvenile facilities would assure

[ 462 Pa. Page 624]

    rehabilitation commensurate with the serious nature of appellant's problem within the time limitations available to such facilities.*fn15 The only evidence on this issue came from appellant's own expert, who indicated there was a likelihood it would be necessary to continue treatment beyond appellant's minority and that a successful result would not be accomplished within three years. It was on this basis, that the lower court concluded there were reasonable grounds to believe appellant was not amenable to treatment supervision or rehabilitation as a juvenile within existing juvenile facilities.*fn16

We are convinced the appellant did not show he was amenable to treatment as a juvenile. Since no other reason was given in favor of certification to the juvenile court and, since the "non-amenability" found by the hearing judge was supported by the evidence, we do not find an abuse of discretion. Accord Commonwealth v. Pouls, 198 Pa. Super. 595, 182 A.2d 261 (1962); Ciammai chella Appeal, 169 Pa. Super. 240, 82 A.2d 560 (1951) affirmed 369 Pa. 278, 85 A.2d 406 (1952); In re Weintraub, 166 Pa. Super. 342, 71 A.2d 823 (1950). Accordingly, we find that based on the record presented below, the decision to proceed in criminal court was warranted.

Judgment of sentence affirmed.

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