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filed: July 11, 1980.


No. 1158 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 2658, January Session, 1977.


John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.

Author: Price

[ 279 Pa. Super. Page 364]

Following a non-jury trial commenced on August 22, 1977, appellant was convicted of indecent exposure*fn1 and

[ 279 Pa. Super. Page 365]

    rape.*fn2 Post-trial motions were denied, and appellant was sentenced to a term of imprisonment of one and one-half to seven years on the rape count. Sentence was suspended on the charge of indecent exposure. Finding merit to appellant's contention that his certification to stand trial as an adult was improper due to the trial court's failure to make adequate findings of facts to support its order, we remand to the court of common pleas for a new certification hearing.

The pertinent facts are as follows. During the morning of July 1, 1976, the complainant, a girl of tender years, went to appellant's residence to visit his sister, Hope. After knocking on the door, the complainant was admitted by appellant who, upon closing the door behind her, forced the complainant into the basement and there raped her. A medical examination of complainant conducted shortly after the criminal incident disclosed recent vaginal tears and bleeding, and traces of spermatozoa.

On appeal, appellant contends that the court of common pleas erred by improperly certifying him to stand trial as an adult, denying his motion to dismiss the complaint, and denying his motion for a mistrial.

Appellant was seventeen years old when the instant offenses were committed and eighteen years old when his certification hearing was held. At the time of this certification hearing, January 28, 1977, transfers from juvenile court to the criminal section of the court of common pleas were governed by section 28 of the Juvenile Act.*fn3 That section provided that a juvenile may be tried as an adult if:

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

[ 279 Pa. Super. Page 366]

(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 that the delinquent act would be considered a felony if committed by an adult, 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 records 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."

In interpreting the statute, our supreme court has held that in situations in which the Commonwealth seeks to remove the juvenile from the jurisdiction of the juvenile court for trial as an adult, the Commonwealth bears the burden of proving that the juvenile is not the proper subject for the care and solicitude of the juvenile system. Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978). See Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975).

"In essence, the Act creates a presumption that the errant juvenile can best be supervised, directed and rehabilitated under its provisions absent evidence to the contrary. It therefore follows that the party raising the objection to the juvenile court's jurisdiction must shoulder the burden of presenting evidence to establish those facts which would warrant the conclusion that in a given case the ...

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