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10/15/97 COMMONWEALTH PENNSYLVANIA v. FAKARDEEN LEE

October 15, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
FAKARDEEN LEE, APPELLANT



Appeal from the JUDGMENT OF SENTENCE of December 11, 1995 in the Court of Common Pleas of Philadelphia County, Criminal, No. 94-08-0473. Before Lehrer, J.

Appeal from the Judgment of Sentence entered December 11, 1995 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 94-08-0473.

Before: Del Sole, Schiller, and Montemuro*, JJ. Del Sole, J. filed a Concurring Opinion.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

Filed October 15, 1997

Appellant, Fakardeen Lee, appeals from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County on December 11, 1995. We affirm.

FACTS:

On June 23, 1994, appellant shot a 21 year old male in the chest at close range. Fortunately, the victim survived. The incident occurred when appellant came out of a store and encountered the victim talking with friends. Appellant and the victim argued briefly and appellant left. He returned shortly thereafter, stood nearby for a moment, then struck the victim in the head and shot him in the left side of the chest. Based on the victim's identification, a warrant was issued for appellant's arrest. On June 29, 1994, appellant, then 16 *fn1, surrendered to Philadelphia police.

A petition of delinquency was filed charging appellant with aggravated assault *fn2, possession of an instrument of crime *fn3, recklessly endangering another person's life *fn4, carrying a firearm without a license *fn5, carrying a firearm on a public street *fn6 and simple assault *fn7 The Commonwealth filed notice that it would seek to have appellant's case transferred to the adult division pursuant to 42 Pa.C.S. § 6355. On July 25, 1994, a certification hearing was held, and a prima facie case was established based on the complainant's testimony. In the amenability phase of the hearing, the court reviewed the contents of appellant's J-file *fn8, which included his prior record *fn9, information on his family, and a psychological evaluation *fn10 The court also heard testimony from the probation officer's supervisor; this officer, who had only spoken with appellant before the hearing, recommended that he remain within the juvenile system because he had never received services from the system. The psychologist made no recommendation on certification. Argument was also presented by the Commonwealth and defense counsel *fn11 The court certified appellant's case for transfer to the adult division.

On October 4, 1994, appellant's case was reassigned to the Philadelphia Court of Common Pleas, Criminal Division, and, after numerous delays, he was tried without a jury on June 13 and 15, 1995. Appellant was found guilty of aggravated assault, recklessly endangering another person and possession of an instrument of crime. A post-trial motion for extraordinary relief *fn12 was filed which challenged the transfer of appellant's case to the adult division.

On December 6, 1995, at a post-trial motion and sentencing hearing, the court heard further evidence on appellant's motion regarding his amenability to treatment as a juvenile, and reviewed a pre-sentencing report including mental health and drug and alcohol evaluations. Ultimately, the court refused to grant relief on this motion, concluding that it lacked the power to review the Juvenile Court's decision. Appellant was then sentenced to not less than 5 nor more than 10 years for the aggravated assault charge *fn13 and not less than 2 1/2 nor more than 5 years (concurrent) on the PIC conviction. The court also ordered that appellant be evaluated and considered for placement at a juvenile facility. This appeal followed.

Discussion

On appeal, appellant raises two issues:

Whether the juvenile court erred in transferring appellant's case to the adult division?

Whether the trial court erred in declining to review the juvenile court decision after additional evidence of appellant's amenability was presented at a post-trial hearing?

Before an appellate court will set aside a decision to transfer, the appellant must show a gross abuse of the broad discretion afforded the hearing Judge. Commonwealth v. McGinnis, 450 Pa. Super. 310, 315, 675 A.2d 1282, 1285 (1996) (citation omitted). An abuse of discretion "is not merely an error of judgment, but the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment based upon partiality, prejudice or ill will." Id. at 316, 675 A.2d at 1285.

In his first issue appellant contends that in certifying his case to the criminal division, the juvenile court made two errors which entitle him to a new hearing. He alleges that the court failed to state fully the reasons for transferring the case to the adult division, and that in making that decision, the court impermissibly relied on the nature of the crime. We address these contentions in order.

Under our law, when a delinquency petition has been filed alleging criminal conduct, the case may be transferred to criminal court for prosecution "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 ...


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