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COMMONWEALTH PENNSYLVANIA v. KEVIN WILLIAMS BEY (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN WILLIAMS BEY, APPELLANT



Appeal from the judgments of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1390, 1391 September Session 1974.

COUNSEL

David A. Silverstein, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a concurring opinion. Hoffman and Price, JJ., file concurring and dissenting opinions.

Author: Jacobs

[ 249 Pa. Super. Page 189]

The facts in this case are uncontroverted. On June 10, 1974, at approximately 5:30 p. m., a twelve year old girl and her 10 year old male playmate were playing in a vacant lot in Philadelphia when they were accosted by a young black male who threatened the children and ordered the little girl to remove her undergarments. He thereupon committed various sexual acts -- vaginal, rectal and oral, upon the girl's person. The children reported the crime to the Philadelphia police and gave the investigating officers a detailed description of the assailant.*fn1 At 10:00 p. m. on the same date Gang Control Officers of the Philadelphia Juvenile Aid Division arrested the appellant, then sixteen years of age, and took him to the 35th police district. At approximately 2:00 a. m. on June 11, 1974, while still at the 35th police district, the appellant was placed in a lineup. The appellant was represented at the lineup procedure by an attorney from the Philadelphia Defender Association who rearranged the lineup and insisted that the lineup participants be seated behind a table so that any height differentials would be eliminated. Appellant was positively identified by the two young children as the person who had accosted the complainant a few hours earlier. Appellant was subsequently transferred to the 14th police district on the morning of June 11, 1974, and

[ 249 Pa. Super. Page 190]

    later taken to the Youth Study Center in Philadelphia.*fn2 At 2:30 p. m. on June 12, 1974, 40 1/2 hours after his arrest, appellant was given a detention hearing before the Honorable Jerome A. O'Neill sitting as a committing magistrate pursuant to Section 15 of the Juvenile Act.*fn3 A preliminary hearing was conducted on Wednesday, July 3rd, 1974, which, in addition, was used as a certification hearing in order to determine whether the appellant should stand trial as an adult. This hearing was continued until July 9, 1974, at which time the appellant was certified by a judge of the Court of Common Pleas, Family Division, to stand trial as an adult.*fn4 After indictments were returned by the Grand Jury of Philadelphia County, appellant filed motions to quash the indictments and to suppress identification, which were denied. Appellant was found guilty by a jury of rape*fn5 and involuntary deviate sexual intercourse.*fn6 After timely post-trial motions were denied the appellant was sentenced to 5-20 years in a State Correctional Institution on each bill, sentences to run concurrent. This appeal followed.

Appellant raises several contentions before this court. He alleges that the trial court (1) erred in certifying him to the common pleas court to stand trial as an adult; (2) erred in not suppressing the identification of the appellant because the post-arrest pre-trial lineup was unduly suggestive;*fn7 (3)

[ 249 Pa. Super. Page 191]

    erred in refusing to give two charges that he requested; and (4) erroneously dismissed the motion to quash the indictment because he was not given a preliminary arraignment without unnecessary delay pursuant to Pa.R.Crim.P. 130. We shall deal with each of these contentions in order.

I

Appellant's initial contention is that the trial judge of the court of common pleas, Family Division erred in certifying him to stand trial as an adult pursuant to Section 28 of The Juvenile Act.*fn8 It is axiomatic that before this court will set aside a transfer, the appellant must show a gross abuse of the broad discretion afforded the hearing judge. Commonwealth v. Greiner, 236 Pa. Super. 289, 297, 344 A.2d 915, 919 (1975) citing Commonwealth v. Pouls, 198 Pa. Super. 595, 182 A.2d 261 (1962). Such abuse is not merely an error of judgment, but the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment based upon partiality, prejudice or ill will. Commonwealth v. Greiner, supra. There has been no suggestion, nor would the record support any allegation, that the family court judge acted in a manner that could be considered partial, prejudicial or vindictive. Appellant's contention is that his certification was improper in that the court failed to specifically report its reasons for the certification, and, a fortiori, the lower court failed to illustrate that it had made a full investigation of the matter and had given the certification question careful consideration. Appellant contends, therefore, that a meaningful review by this Court is not possible. Kent v. U. S., 383 U.S. 541, 86 S.Ct.

[ 249 Pa. Super. Page 1921045]

, 16 L.Ed.2d 84 (1966); see Freeman Appeal, 212 Pa. Super. 422, 242 A.2d 903 (1968) (under now repealed Juvenile Court Law). We agree.

The constitutional mandates of Kent v. U. S., supra, the landmark decision in this area, was made applicable to the states in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); U. S. ex rel. Turner v. Rundle, 438 F.2d 839 (3rd Cir. 1971); Commonwealth v. Pyle, 462 Pa. 613 n. 8, 342 A.2d 101, 105 n. 8 (1975); Freeman Appeal, supra. The Kent Court stated:

"[W]e hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should include conventional findings of fact, but the statement should be sufficient to demonstrate that the statutory requirement of 'full investigation' has been met; and that the question has received the careful consideration of the Juvenile Court, and it must set forth the basis for the order with sufficient specificity to permit meaningful review." 383 U.S. at 561, 86 S.Ct. at 1057.

It is noteworthy that ยง 28 of the Juvenile Act, which sets forth the standards for a transfer of a juvenile to criminal court for trial in our Commonwealth, was adopted several years after the Kent decision. That section provides in relevant parts:

"(a) After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this State, the court before hearing the petition on its merits may rule that this act is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the trial or criminal division or to a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if:

"(1) The child was fourteen or more years of age at the time of the alleged conduct; and

[ 249 Pa. Super. Page 193]

"(2) A hearing on whether the transfer should be made is held in conformity with this act; and

"(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing; and

"(4) The court finds that there is a prima facie case that the child committed the delinquent act alleged, and the court finds that there are reasonable grounds to believe that: (i) the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, in determining this the court may consider age, mental capacity, maturity, previous record and probation or institutional reports; and (ii) the child is not committable to an institution for the mentally retarded or mentally ill, and (iii) the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult."

This section must therefore be read within the framework of the constitutional duties prescribed by Kent when assessing the validity of appellant's assertions. Our court was recently faced with a situation similar to the case at bar in Commonwealth v. Greiner, 236 Pa. Super. 289, 344 A.2d 915 (1975). In that case Greiner was 15 years old when arrested for and convicted of criminal conspiracy, burglary, attempted kidnapping, aggravated assault, and attempted murder. A hearing pursuant to Section 28 was held in which the Commonwealth introduced testimony regarding the nature of the alleged crimes. A probation officer testified that after an investigation into Greiner's background it was his opinion that he was "in need of some firm form of rehabilitation and that Greiner could better be served in the juvenile system." Despite this testimony the lower court ordered that Greiner be certified to stand trial as an adult.*fn9

[ 249 Pa. Super. Page 194]

We affirmed having found no abuse of discretion in view of the lengthy pre-transfer hearing and the lower court's attention to the requirements presented by Section 28.

In the instant case, however, the guidelines established by Kent and Greiner, even under a most liberal reading, were not complied with. Of significant importance on this point is the absence of a statement by the juvenile court judge as to the reasons for certification. Such a statement is required by the express language of Kent, and is required by our decision in Freeman Appeal, supra.*fn10 We are not unmindful that the Kent court did not require a formal statement or that it include conventional findings of fact, 383 U.S. at 561, 86 S.Ct. 1045, but it is clear from a reading of Kent that some statement of sufficient specificity must be supplied in order that a meaningful review can be had. None appears in the record of this case. At the first hearing*fn11 on July 3, 1974 the only result was that a prima facie case was established pursuant to Section 28. The issue of certification was discussed and decided at the second hearing on July 9, 1974. At that hearing, no testimony was

[ 249 Pa. Super. Page 195]

    received and after only vague reference to psychologic and psychiatric reports which do not appear in the record, and a discussion of appellant's past record the juvenile court judge stated:

"THE COURT: . . . I am going to certify the case, Mr. Silverstein. I think, as I see it, the Juvenile Court system is not an adequate setup to handle this defendant and his behavior, and I am going to certify him for that reason.

"All right. Certification request is granted."

Such a statement does not satisfy the due process requirements of Kent, Greiner and Freeman. Absent an opinion or statement setting forth the reasons for certification, it is impossible for this court to afford any type of meaningful review of the issues raised by the appellant. There is no indication in the record as to whether the court considered the other criteria expressed in the statute: the child's age, mental capacity and maturity. Section 28(a)(4)(i). We cannot assume that it did. Nor will a generalized reading by the prosecuting attorney of the words of Section 28, and a statement that in his opinion the statute has been complied with, satisfy the constitutional requirements established by the Supreme Court. Simply stated, no specific reasons were advanced by the lower court for its conclusion that the child is "not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities." Thus an evaluation of the propriety of the certification is precluded.

The case must therefore be remanded for a new certification hearing to be held in conformity with the requirements of this opinion.

II

Despite our remand for a new certification hearing it is still necessary to decide the allegations of trial error raised by appellant attacking his conviction, for if it is determined on remand that appellant's certification was proper, and no trial error is found, then appellant's conviction must be affirmed.

[ 249 Pa. Super. Page 196]

Appellant contends that the trial court erred when it refused to charge the jury as requested by his counsel. It is well-settled that the trial court is not required to accept the language of requested instructions submitted by counsel, but is free to select its own form of expression, so long as the issue is adequately, accurately and clearly presented to the jury for its consideration. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975); Commonwealth v. Rose, 449 Pa. 608, 297 A.2d 122 (1972). The two charges rejected by the trial court concerned an alibi defense and identification. Our examination of the record discloses that the court gave a complete and careful statement regarding alibi and also properly charged the jury on identification. Considering the charges as a whole, Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975); Commonwealth v. Walker, 459 Pa. 12, 326 A.2d 311 (1974); Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); and it is the general effect of the charge that controls, Commonwealth v. ...


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