No. 978 Philadelphia Term, 1980, Appeal from the Order of the Court of Common Pleas of Berks County, Juvenile Division, at No. 39-J, 1980.
William R. Bernhart, Reading, for appellant.
George C. Yatron, District Attorney, Reading, submitted a brief on behalf of Commonwealth, appellee.
Wickersham, Montemuro and Watkins, JJ. Montemuro, J., files a dissenting opinion.
[ 291 Pa. Super. Page 299]
On April 24, 1980 in the Court of Common Pleas of Berks County, Pennsylvania -- Juvenile Division, the defendant was found guilty of the summary offense of criminal mischief and was fined one hundred dollars ($100.00), costs and restitution. The juvenile-appellant appealed to this court.*fn1
[ 291 Pa. Super. Page 300]
Following an episode where two concrete and wooden park benches were found overturned in a tree-well at the West Reading Playground, West Reading Police charged Alan D., age 12, with criminal mischief under the Pennsylvania Crimes Code, 18 Pa.C.S. § 3304(a)(2). A district justice entered a summary criminal conviction against defendant on the offense charged on November 20, 1979, imposed a $300 fine and ordered restitution in the amount of $150.34. Defendant timely appealed his summary criminal conviction to the Court of Common Pleas of Berks County for a trial de novo, Pa.R.Crim.P. 67, and shortly thereafter the matter was ordered transferred from regular miscellaneous court to the juvenile division. Defendant, at the time of trial, challenged the jurisdiction of the juvenile division of the court of common pleas over an appeal from a district justice's summary conviction.
Following testimony, the lower court entered its adjudication: finding defendant guilty beyond a reasonable doubt of the acts alleged, imposed a fine of $100, and ordered defendant to make restitution in the amount of $300.68. The court further found that the amount of damages being less than $500, the crime committed was a summary offense, 18 Pa.C.S. § 3304(b), and unless defendant failed to pay the fine levied, he had not committed a delinquent act, and therefore was not a delinquent child. 42 Pa.C.S. § 6302.
Underlying appellant's objection to jurisdiction appears to be the contention that the Juvenile Act, 42 Pa.C.S. § 6301, et seq., applies only to delinquent acts, that summary offenses are not included within the designation "delinquent act," and, therefore, the juvenile division lacks jurisdiction over the subject matter of this case. Section 6302 of the Juvenile Act (hereinafter "Act") indeed provides that a delinquent act is one designated a crime under the law and that the term shall not include summary offenses, "unless
[ 291 Pa. Super. Page 301]
the child fails to pay a fine levied thereunder . . . ." However, jurisdiction under the Act does not depend solely on allegations of delinquency. Section 6303 of the Act, entitled "Scope of chapter," provides that in addition to proceedings in which delinquency is alleged, the Act shall apply to "[t]ransfers under section 6322 (relating to transfer from criminal proceedings)." Section 6322, subsection (a), states, in pertinent part, that:
[I]f it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or 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. (Emphasis added).
A threshold question in applying the facts of the case to the above section would be whether a hearing on a charge of a summary offense is a "criminal proceeding." The Crimes Code, 18 Pa.C.S. § 101, et seq., itself provides the answer. Section 106 of the Crimes Code, subsection (a), states: "An offense defined by this title for which a sentence of death or of imprisonment is authorized constitutes a crime." 18 Pa.C.S. § 106(a) (Supp.1981-82) (emphasis added). At section 1105, the Crimes Code provides: "A person who has been convicted of a summary offense may be sentenced to imprisonment for a term which shall be fixed by the court at not more than 90 days. Interest of Golden, 243 Pa. Super. 267, 365 A.2d 157 (1976). It follows logically that a criminal proceeding encompasses a summary offense.
In the instant case, following defendant's appeal of his summary criminal conviction, the case was listed for a hearing in the common pleas court to be held January 9, 1980. Five days after that hearing, on January 14, 1980, the trial judge entered an order on the record noting that defendant was a child and certifying ...