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filed: June 18, 1982.


No. 2456 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, January Term, 1979, at Nos. 1214-1216.


Steven H. Goldblatt, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

John W. Packel, Assistant Public Defender, Philadelphia, for appellee.

Brosky, Hoffman and Cirillo,*fn* JJ. Brosky, J., filed a dissenting opinion.

Author: Per Curiam

[ 301 Pa. Super. Page 230]

In this appeal from an order arresting judgment, the Commonwealth contends that the lower court erred in holding that appellee had not been timely tried. For the reasons that follow, we reverse the lower court and remand for disposition of appellee's remaining post-trial motions.*fn1

On June 6, 1978 appellee, then fifteen years old, committed the instant robbery and an unrelated robbery. He was arrested for the present offense on July 18, 1978. The Commonwealth filed a juvenile delinquency petition, and subsequently notified appellee it would seek to certify him to stand trial as an adult in criminal court on both offenses. A hearing for both robberies was scheduled for November 14, 1978, but the complaining witness in the present case was unavailable. The juvenile court thus rescheduled the hearing on this offense, and proceeded with the hearing on the second robbery. After finding a prima facie case, the court heard testimony as to appellee's amenability to treatment as a juvenile. The court then ordered him committed to the maximum security unit at Cornwells Heights Youth Development Center (Cornwells). On December 12, 1978, it held a

[ 301 Pa. Super. Page 231]

    certification hearing on the instant offense, found a prima facie case, but postponed the amenability determination pending a report on appellee's progress at Cornwells. On January 8, 1979 based upon the report of the director of Cornwells, the court found appellee not amenable to treatment in the juvenile system, and certified him to criminal court. His non-jury trial commenced on June 25, 1979, 341 days after the delinquency petition was filed, but 168 days after certification. Appellee was found guilty of robbery, theft, receiving stolen property, simple assault and criminal conspiracy. The next day, the trial judge contacted appellee's attorney to suggest that he allege in post-trial motions that Pa.R.Crim.P. 1100 was violated. Appellee subsequently raised that issue*fn2 and several others in post-trial motions. In granting appellee's motions, the trial court concluded that appellee had not been timely tried under rule 1100, and that the juvenile court had improperly certified him to criminal court. Consequently, the trial court ordered him discharged, prompting this appeal.

The Commonwealth argues that the lower court erred in concluding that appellee had not been timely tried under rule 1100.*fn3 We agree. In Commonwealth v. Bell, 245 Pa. Superior Ct. 164, 369 A.2d 345 (1976), aff'd mem., 481 Pa. 229, 392 A.2d 691 (1978), our Court held that when an action commenced in juvenile court by a delinquency petition is subsequently certified to criminal court, the rule 1100 period begins to run at the time of certification. Accord, Pa.R.Crim.P. 1100(a)(3) (effective January 1, 1982). The Court in

[ 301 Pa. Super. Page 232]

    delinquency proceedings,*fn4 but whether that clause prohibits our Supreme Court from adopting a speedy trial rule that does not apply to juvenile delinquency actions until they have been transferred to criminal court.

Although we agree with the lower court that juveniles are treated differently from adults with respect to their rule 1100 rights, "not every difference in treatment amounts to a denial of equal protection; the difference must be without rational support." Commonwealth v. Walters, 250 Pa. Superior Ct. 446, 450, 378 A.2d 1232, 1234 (1977) citing Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) and Commonwealth v. Staub, 461 Pa. 486, 337 A.2d 258 (1975).*fn5 Because we believe that our Supreme Court could rationally adopt a rule of criminal procedure establishing a fixed period for bringing criminal defendants to trial without applying that rule to juvenile delinquency proceedings, we conclude that the equal protection clause does not mandate that the rule 1100 period begin upon the filing of the delinquency petition. As noted previously, Pa.R.Crim.P. 1(a) provides that the Pennsylvania Rules of Criminal Procedure generally do not apply to juvenile proceedings. Rule 1(a) is based upon our Supreme Court's

[ 301 Pa. Super. Page 234]

    recognition of the substantial differences between juvenile and criminal proceedings. Geiger Appeal, 221 Pa. Superior Ct. 111, 120, 288 A.2d 911, 915 (1972) (HOFFMAN, J., dissenting), rev'd, 454 Pa. 51, 309 A.2d 559 (1973). See e.g., Juvenile Act, 42 Pa.C.S. §§ 6336(a) (juvenile hearing conducted in informal manner by court without jury); 6336(c) (juvenile proceedings recorded only if requested by party or ordered by court); 6336(d) (general public excluded from juvenile hearings); 6352 (disposition of delinquent child). In holding that the due process clause of the fourteenth amendment requires that some rights afforded criminal defendants apply during the adjudicatory stage of juvenile delinquency proceedings, the United States Supreme Court also has recognized the differences between juvenile and criminal proceedings. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Cf. McKeiver v. Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 1988, 29 L.Ed.2d 647 (1971) (plurality opinion) ("If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial."). We believe that the Federal Constitution does not preclude our legislature and Supreme Court from deciding whether procedural rules, such as rule 1100, should apply to juvenile proceedings. Accordingly, we hold that the lower court erred in concluding that rule 1100, as applied in this case, violates the equal protection clause.*fn6

The trial court held also that the juvenile court erred in certifying appellee to criminal court because he had already been found amenable to treatment within the juvenile system for a similar crime committed the same day as

[ 301 Pa. Super. Page 235]

    the instant offense. We disagree. To certify a juvenile to criminal court in a non-capital case, the court must find, inter alia, that there is a prima facie case that the child has committed the offense charged, 11 P.S. § 50-325(a)(4), and that there are reasonable grounds to believe "that the child is not amenable to treatment, supervision or rehabilitation through available facilities," id. § 50-325(a)(4)(i) (emphasis added). In determining amenability, the court may consider "age, mental capacity, maturity, previous record and probation or institutional reports." Id.; Commonwealth v. Greiner, 479 Pa. 364, 369, 388 A.2d 698, 700 (1978). The juvenile court is thus required to determine whether the child is amenable at the time of the hearing on that charge. The trial court's holding that appellee's committing two crimes on the same day precluded the juvenile court from finding him amenable to one and not the other is untenable. The date of the commission of the crime is essentially irrelevant to the child's amenability. Appellee was charged with two unrelated crimes for which the Commonwealth sought certification to criminal court. Because of the unavailability of a witness in the instant case, there were two separate certification hearings. That he was found amenable to treatment at the time of the first certification hearing, did not preclude the juvenile court from later determining upon a record containing additional evidence whether he was still amenable at the time of the second hearing. In fact, the record is clear that appellee could no longer be treated as a juvenile. The school director's report indicated that appellee's behavior had begun to "decline drastically." Appellee had attacked staff members and fellow students during his brief stay and constantly intimidated weaker students. He made sexual advances toward female staff members. Moreover, he had actively participated in a riot at the school, and then organized other students to oppose the State Police officers who had arrived to quell the disturbance. The director concluded that the resources at Cornwells had been exhausted. On this ample record, the juvenile court properly

[ 301 Pa. Super. Page 236]

    found appellee not amenable to treatment in the juvenile system.

For the foregoing reasons, we reverse the order of the court below and remand for disposition of appellee's remaining post-verdict motions.*fn7

So ordered.

BROSKY, Judge, dissenting:

I dissent.

Our Supreme Court has made no statement with regard to the issue of a juvenile's rights under Pennsylvania Rules of Criminal Procedure 1100 (hereinafter Rule 1100). It has, however, affirmed a decision of our court on that issue without an opinion. In the absence of any view expressed by our Supreme Court, I believe a further discussion on the subject would be appropriate.

In Commonwealth v. Bell, 245 Pa. Super. 164, 369 A.2d 345 (1976), aff'd without opinion, 481 Pa. 229, 392 A.2d 691 (1978), President Judge Cercone stated by way of a dissenting opinion that Rule 1100 was not intended to begin to run when certification occurs. Rather, as our Supreme Court's comment to Rule 1100 states:

"For the purpose of this rule only, it is intended that 'complain' also include special documents used in lieu of a complaint to initiate criminal proceedings in extraordinary circumstances." Even if it is conceded that juvenile delinquency petitions are not "special documents in lieu of a complaint to initiate criminal proceedings in extraordinary

[ 301 Pa. Super. Page 237]

    circumstances," when read in context with the rule, the comment nevertheless clearly indicates that the word "complaint" was used to designate the point when criminal proceedings were initiated by the filing of the delinquency petition in Juvenile Court, not by the certification of the case to adult court.

This view was also articulated by Mr. Justice Roberts who dissented to the affirmance of Commonwealth v. Bell, supra., where he directs our attention to Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977), which indicated that the 180 day period will commence to run when there is an act which institutes criminal proceedings. Under the Mitchell, supra., analysis, that act includes the moment at which a warrantless arrest is made. It appears to me entirely inconsistent to hold that juveniles will not be accorded the same treatment under Rule 1100. Thus, I would start the Rule 1100 period when the juvenile delinquency petition is filed.*fn1

Alternatively, if we hold that juveniles are not included in Rule 1100's protections pursuant to Pennsylvania Rule of Criminal Procedure 1(a), [hereinafter Rule 1(a)] we must determine whether the juvenile has been accorded due process within the scope provided adults. In re Gault, supra. The test by which the right to a speedy trial is gauged has been stated in State in Interest of H.M.T., 159 N.J.Super. 104, 387 A.2d 368 (1978), where the court said:

As a matter of federal constitutional imperative, the test of a vitiating delay has been articulated by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In determining whether a delay is reasonable in constitutional terms, the court is obligated to consider, balance and weigh four prescribed factors: the length of delay,

[ 301 Pa. Super. Page 238]

    the reasons for the delay, the prejudice resulting to defendant, and defendant's assertion of the right.

Id. at 110, 387 A.2d at 371.

In the instant case, the appellee's trial commenced 341 days after the delinquency petition was filed and 168 days after certification occurred. There is no apparent legitimizing explanation for the delay which exists in the record. Appellee was the subject of several proceedings but not until December 12, 1978 was a prima facie case found to exist against him. He was held in a detention center during this period of time and thus was readily accessible to the courts. Clearly, appellee was prejudiced by the delay. He was incarcerated in a detention center. Cf: United States v. Furey, 500 F.2d 338 (1974). Appellee asserted his right to a speedy trial. I would hold that completely separate from Rule 1100's arbitrary 180 day limitation that appellee was denied his right to a speedy trial.

I also share the view of the court in Furey, supra., which stated:

As a matter of policy we see no reason why juvenile delinquency proceedings should be excluded from the plan. [Fed.R.Crim.Pro. 50(b) providing a 6 month limitation on commencement of trial] the same policies which precipitated the enactment of rules providing for prompt disposition of criminal proceedings are applicable whether the person charged is an adult or a juvenile.

I note that the application of the juvenile exception Rule 1(a) was rejected by our Supreme Court in a parallel situation in In re Geiger, 221 Pa. Super. 111, 288 A.2d 911 (1972), Rev'd, 454 Pa. 51, 309 A.2d 559 (1973).

*fn* At the time this case was submitted, Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania was sitting by designation.

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