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COMMONWEALTH PENNSYLVANIA v. CAREY NICK DEPPELLER (05/27/83)

filed: May 27, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
CAREY NICK DEPPELLER, APPELLANT



No. 894 Philadelphia 1981, Appeal from the Judgment of Sentence dated March 10, 1981, Court of Common Pleas, Criminal Trial Division, Monroe County at No. 329-1980.

COUNSEL

Arthur L. Zulick, Assistant Public Defender, Stroudsburg, for appellant.

Robert C. Lear, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

McEwen, Johnson and Hoffman, JJ.

Author: Johnson

[ 314 Pa. Super. Page 370]

Appellant, a juvenile at the time of his arrest, was transferred to criminal court for trial following a certification hearing pursuant to Section 6355 of the Juvenile Act.*fn1

[ 314 Pa. Super. Page 371]

Appellant then pled guilty to robbery*fn2 and was sentenced to two and one-half to five years imprisonment. This appeal followed. We now vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Appellant has raised two issues on appeal, namely: (1) whether the juvenile court committed a gross abuse of discretion in finding that appellant was not amenable to treatment as a juvenile and in certifying him to criminal court and (2) whether the juvenile court erred by failing to adequately state its reasons why the appellant was not amenable to treatment as a juvenile.

We direct our attention to a consideration of appellant's second issue. The certification hearing was held on two separate days, commencing late in the afternoon on April 16, 1980 and continued for conclusion on June 2, 1980. The hearing had been continued from April 16th at the request of the then-juvenile's counsel to permit the gathering of witnesses and the review of the probation and other records pertaining to the juvenile.*fn3

At the conclusion of the reception of testimony on June 2nd, both the attorney for the Commonwealth and counsel for the juvenile presented summations and argument to the certification hearing court which were transcribed.*fn4 We note that both opposing counsel presented to the court their positions as to why the court should rule in favor of their respective clients. The assistant district attorney reviewed the factors which the court must consider on any transfer petition. 42 Pa.C.S.A. 6355(a), §§ (1) and (4). The public defender, in turn, reviewed those factors and made specific reference to the testimony adduced at the hearing. He referred specifically to the availability of facilities for treatment or rehabilitation of his client, 42 Pa.C.S.A. § 6355(a)(4)(iii)(A), that two witnesses had testified to the juvenile's amenability to treatment, id., and that the Commonwealth

[ 314 Pa. Super. Page 372]

"has failed to indicate non-amenability to treatment."*fn5 He correctly further argued to the court that the burden is on the Commonwealth to prove that the juvenile is not the proper subject for the care and solicitude of the juvenile system. ...


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