filed: May 8, 1981.
COMMONWEALTH OF PENNSYLVANIA
HOWARD DALE DOTSON, APPELLANT
No. 1075 October Term, 1979, Appeal from the judgment of sentence of the Court of Common Pleas of Cumberland County, Pennsylvania, Criminal Division, at 1041 Criminal 1978.
Ellen M. Burgraff, Assistant Public Defender, Carlisle, for appellant.
Edgar B. Bayley, Jr., District Attorney, Carlisle, for Commonwealth, appellee.
Hester, Wickersham and Lipez, JJ. Lipez, J., files a concurring statement.
[ 286 Pa. Super. Page 597]
On October 11, 1978, the appellant, Howard Dale Dotson, entered Elby's Restaurant in Lemoyne, Cumberland County, at about 9:00 p.m. He was carrying a 12 gauge shotgun, wearing a black T-shirt, had a bandanna over his face and was accompanied by one other similarly clad youth. In his possession was a 12 gauge shell. Within one hour the Lemoyne Police Department, working with the Upper Allen Township Police, had appellant in custody and under arrest along with several others. He was charged with criminal conspiracy to commit robbery and criminal attempt to commit robbery.
Being under the age of 18 years (age 17, born June 5, 1961), Dotson's activity came within the purview of the "Juvenile Act," 42 Pa.C.S. § 6301 et seq. At the time of the Elby's caper, Dotson was an escapee from Cornwall Heights juvenile detention facility.
The Cumberland County Juvenile Court, by President Judge Dale F. Shughart, conducted proceedings under Section 6355 of the Juvenile Act and ruled that the offenses should be prosecuted, and transferred the offenses to criminal court.
Thereafter, on February 12, 1979, defendant Dotson entered a plea of guilty to a felony in the second degree, criminal conspiracy to commit armed robbery, and was sentenced on May 1, 1979 to undergo imprisonment in a state correctional institution for a period of not less than two and one-half years, nor more than seven years. This appeal followed.*fn1
[ 286 Pa. Super. Page 598]
We find no merit in the last three statements of questions involved and affirm as to those points on the basis of the opinion of President Judge Shughart filed August 23, 1979 per Pa.R.A.P.1925.
We will discuss the first issue raised by appellant, namely whether the burden is on the Commonwealth to prove the juvenile's noncommittability and, if so, whether the court can require the child to cooperate in being examined by a psychiatrist.
As we have seen, under Section 6355 of the Juvenile Act, the court before hearing a petition on its merits may rule that the offense should be prosecuted and transfer the offense to the court assigned to conduct criminal proceedings if all of the following exist :
(1) The child was 14 or more years of age at the time of the alleged conduct.
(2) A hearing on whether the transfer should be made is held in conformity with this chapter.
(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.
(4) The court finds:
(i) that there is a prima facie case that the child committed the delinquent act alleged
(ii) that the delinquent act would be considered a felony if committed by an adult; and
(iii) that there are reasonable grounds to believe all of the following:
(A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities. In determining this the court may consider
[ 286 Pa. Super. Page 599]
age, mental capacity, maturity, previous records and probation or institutional reports.
(B) That the child is not committable to an institution for the mentally retarded or mentally ill.
(C) That 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.
42 Pa.C.S. § 6355 (emphasis added).
Defendant states in his appellate court brief that the court compelled his cooperation with the psychiatrist by ordering that the Commonwealth would be excused from proving one of the statutory requirements for transfer if appellant did not cooperate.*fn2 Defendant contends that the Fifth Amendment protects a juvenile from being forced to cooperate with a psychiatrist whose report will be offered at proceedings to transfer the case to criminal court.
Instantly, in order to determine reasonable grounds to believe that the child was not committable to an institution for the mentally retarded or mentally ill, the court directed a psychiatric examination by Order of Court dated November 3, 1978, to be conducted by Mental Health/Mental Retardation Service.*fn3 Judge Shughart issued a supplementary
[ 286 Pa. Super. Page 600]
Order of Court dated November 6, 1978 specifying that the psychiatric examination being ordered was "solely for the purpose of determining whether the juvenile is committable to an institution for the mentally retarded or mentally ill" and further that "in view of the limited nature of the requested examination, the juvenile may either cooperate with the psychiatrist appointed or be deemed to have waived his right to assert that he is committable to an institution for the mentally retarded or mentally ill."
We hold that in a Section 6355 transfer proceeding, the juvenile court has an affirmative duty to make a finding that there are reasonable grounds to believe that the child is not committable to an institution for the mentally retarded or mentally ill. The Commonwealth, therefore, has the burden of showing reasonable grounds to support such a finding.
We hold further that in order to determine whether there are reasonable grounds for believing that a child is not committable, the juvenile court may direct that the child cooperate in a psychiatric examination or else be deemed to have waived his right to assert later that the juvenile court should not have decided that he was not committable. Common sense dictates that an obligation rests with the child to cooperate with the examining psychiatrist so that the court may reach a proper determination in this matter.
Our holding does not deny a child his constitutional right to counsel nor his right to have counsel present with him at the proposed examination. Our holding also permits the child to remain silent and not cooperate in the examination.*fn4
Viewed in this light, the action of the lower court was entirely proper and fair to the child; the transfer was
[ 286 Pa. Super. Page 601]
appropriate under all the circumstances and accordingly we affirm the judgment of sentence.*fn5
LIPEZ, Judge, concurring:
I concur in the result for the reasons that 1) appellant, having pled guilty, may not raise non-jurisdictional arguments on appeal, Commonwealth v. Riviera, 254 Pa. Super. 196, 385 A.2d 976 (1978); and 2) the sentence and the reasons therefor are in compliance with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and its progeny.