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07/24/97 COMMONWEALTH PENNSYLVANIA v. DUANE MENZER

July 24, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
DUANE MENZER, APPELLANT



Appeal from JUDGMENT OF SENTENCE October 21, 1994, in the Court of Common Pleas of LAWRENCE County, CRIMINAL, No. 649-93. Before McCracken, J.

Before: Kelly, J.; Cercone, P.j.e.; and Olszewski, J. Opinion BY Olszewski, J.

The opinion of the court was delivered by: Olszewski

OPINION BY OLSZEWSKI, J.:

Filed July 24, 1997

From August to October of 1991, Duane Menzer, appellant herein, and Yardiel Suarez sexually and physically assaulted L.H. In April of 1993, the Commonwealth filed a petition to transfer the proceedings from the Lawrence County Juvenile Court to the Lawrence County Court of Common Pleas. After proper notice was given to all interested parties, a hearing was held relative to the Commonwealth's petition on June 16, 1993. By order dated June 29, 1993, the Honorable Ralph Pratt certified appellant to be tried as an adult.

In August of 1994, appellant was convicted by a jury of involuntary deviate sexual intercourse, indecent assault and criminal conspiracy. Following the preparation of a pre-sentence report, appellant was sentenced to an aggregate term of ten-to-twenty years' imprisonment.

A notice of appeal to this Court was timely filed. Due to appellate counsel's failure to file a brief, however, this Court dismissed appellant's appeal without prejudice. Commonwealth v. Menzer, No. 2030 Pittsburgh 1994. Thereafter, asserting ineffective assistance of counsel, appellant filed a petition for collateral relief pursuant to the Post-Conviction Relief Act. Following a hearing on the merits of said petition, appellant was granted leave to file the instant direct appeal nunc pro tunc.

Appellant contends that, because insufficient evidence was presented at the certification hearing relative to his amenability to treatment in the juvenile system, the lower court erred in certifying him to be tried as an adult. More particularly, appellant avers that the Commonwealth presented "no evidence" to support the Conclusion that his case should be transferred to the court of common pleas. Appellant's brief at 9. Because our review of the certification hearing record conclusively demonstrates the contrary, we affirm the lower court's Order.

At the time that the sexual offenses in this matter occurred, appellant, his co-conspirator and the victim were all residents at the sexual offenders unit of the New Castle Youth Development Center (YDC). Appellant's tenure at this institution began on July 5, 1991, and was the result of a transfer from the Allegheny County YDC, at which appellant had been incarcerated for a variety of non-sexual offenses. Following an adjudication of delinquency for sexual crimes committed against two fellow Allegheny County YDC inmates, appellant was transferred to the New Castle YDC sexual offenders program.

Upon arriving at the New Castle YDC, appellant was assigned to room with L.H. Almost immediately, appellant began to proposition L.H. for sexual favors. L.H., however, denied appellant's advances. In mid-August, appellant attacked L.H. in their room and, after choking the victim, forced him to engage in anal intercourse, fellatio and masturbation. Appellant then threatened L.H. with physical violence should he report the attack to YDC authorities.

For the next several months, appellant continued to sexually assault L.H.. At some point, a third juvenile, Yardiel Suarez, was assigned to live with appellant and L.H.. From that time onward, both appellant and Suarez forced L.H. to submit to their will.

In mid-October, while L.H. was walking down a corridor to the community showers, a YDC counselor noticed that L.H.'s back was scratched and freshly bleeding. After questioning, L.H. disclosed that appellant and Suarez had sexually assaulted him for the previous several months.

In order to properly certify a juvenile to be tried as an adult, a juvenile court must comply with the procedural and substantive mandates outlined in the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. Additionally, the court must make a record which adequately reflects the basis for its decision to transfer a case and demonstrates that the court gave careful consideration to the certification petition. See, e.g., Commonwealth v. Jackson, 456 Pa. Super. 181, , 690 A.2d 240, 241 (1997); Commonwealth v. McGinnis, 450 Pa. Super. 310, , 675 A.2d 1282, 1285 (1996). On appeal, this Court's review is limited to considering whether the hearing court abused its discretion. Id.

Instantly, appellant's sole claim questions whether the lower court erred in determining that appellant was not amenable to further treatment within the juvenile system. This is among a host of factors outlined in the Juvenile Act that the hearing Judge must consider when deciding if the public interest would be served by transferring a case ...


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