No. 257 OCTOBER TERM, 1979, Appeal from the Order of the Court of Common Pleas of Delaware County, Juvenile Division, at NO. J.V. #18499.
Raymond R. Williams, Assistant Public Defender, Media, for appellant.
Sandra L. Gross, Assistant District Attorney, Media, for appellee.
Price, Wieand and Van der Voort, JJ.*fn* Wieand, J., files a dissenting opinion.
[ 277 Pa. Super. Page 471]
This case involves an appeal from an adjudication of delinquency.
On February 10, 1978, a petition alleging delinquency was filed against appellant, then 15 years old, stemming from an incident in which a 12 year old boy was severely beaten.
A hearing was conducted on June 21, 1978 before Howard Farber, Esquire, Master in Juvenile Court, and resulted in the Master issuing a recommendation that the petition be dismissed for insufficient evidence.
The Commonwealth then filed an Exception to Master's Recommendations and Petition for a Rehearing, to which appellant filed an Answer.
On July 3, 1978, the Honorable Howard F. Reed, Jr. granted the Commonwealth a rehearing before the Juvenile
[ 277 Pa. Super. Page 472]
Hearing Judge. Prior to the July 25, 1978 date set for this rehearing appellant filed a motion to dismiss the Commonwealth's petition for a rehearing, raising the issue of double jeopardy. The Honorable Robert A. Wright agreed to hear the merits of the double jeopardy issue, and after oral arguments and submission of briefs entered an Order dated November 9, 1978, refusing appellant's motion.
A full rehearing was held before the Honorable John V. Diggins on January 23, 1979, at which time appellant again raised the issue of double jeopardy. After hearing testimony from the same three witnesses who testified before the Master, the court below entered an Adjudication and Order for Further Study in which appellant was found delinquent.
Appellant now appeals from this Order.
The sole issue presented on appeal is that of double jeopardy. Appellant argues that the procedure followed in Pennsylvania in juvenile delinquency proceedings of allowing the Commonwealth to have a de novo hearing before a judge following a recommendation of dismissal of the petition by a Master, (Juvenile Act, Act of December 6, 1972, P.L. 1464, No. 333 § 5, 11 P.S. § 50-301) violates the ban against double jeopardy of the Pennsylvania and United States Constitutions.
Appellant cites the case of Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978) for support. In Swisher, the Supreme Court upheld a recently enacted Maryland procedure for juvenile delinquency hearings against a double jeopardy attack. A single-judge federal district court had held that the prior Maryland procedure of allowing the state to re-try its case de novo in front of a judge was in violation of the ban against double jeopardy, Aldridge v. Dean, 395 F.Supp. 1161 (Md.1975). In response to this the Maryland Court of Appeals, pursuant to its rulemaking powers, ...