Com. v. Archer

Decision Date16 December 1998
Citation722 A.2d 203
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Anthony ARCHER, Appellant.
CourtPennsylvania Superior Court

Vincent M. Lorusso, Philadelphia, for appellant.

Mary L. Porto, Asst. District Atty., Philadelphia, for Com., appellee.

Before McEWEN, President Judge, and CAVANAUGH, DEL SOLE, KELLY, EAKIN, JOYCE, STEVENS, SCHILLER and LALLY-GREEN, JJ.

JOYCE, J.:

Anthony Archer, Appellant, appeals from the judgment of sentence entered on March 13, 1996. For the following reasons, we affirm. Before reaching the merits of this appeal, we will recount the relevant facts and procedural history.

On August 29, 1994, Appellant and two companions, Ollie Taylor [Taylor] and Khalis Edmonson [Edmonson] obtained a sawed-off.22 caliber rifle. N.T. Trial, 2/7/96, at 141. They met Antoine Saunders [Saunders] on the street. Id. at 143. Appellant had possession of the gun at this time. Id. When Saunders noticed the gun, he commented, "let's rob somebody." Id. at 143. As Appellant and these three co-defendants continued their perambulation, they met another co-defendant, Gregory Pennington. Appellant and the others approached the victim, Al-Moez Alimohamed, a twenty-seven year old graduate student from the University of Pennsylvania. Co-defendant Saunders pointed the gun at the victim while Appellant, Saunders and Taylor hit Alimohamed. Id at 147. The victim fell to the ground and he was kicked. As the co-defendants walked away, Taylor shot the victim. Id. at 149. Before he shot the victim, Taylor heard somebody say "bang him." Id. at 149. Saunders heard a similar comment, but thought that he heard Appellant make the statement. N.T. Trial, 2/6/96, at 161.

Appellant was charged with murder,1 theft by unlawful taking,2 robbery,3 possession of instruments of a crime generally4 and criminal conspiracy5 to commit these various offenses. Appellant filed a pre-trial motion to quash the charge of first degree murder and a motion for decertification.6 The trial court denied both of Appellant's motions. Appellant then proceeded to a trial by jury. On February 12, 1996, the jury found Appellant guilty of robbery, theft by unlawful taking, criminal conspiracy and possessing instruments of a crime generally. Appellant was acquitted of murder. At sentencing, Appellant presented a motion requesting that the court conduct a hearing regarding transferring the case to the juvenile division for disposition pursuant to 42 Pa.C.S.A. § 6322(b). The court denied the request for a hearing and refused to decertify the minor for disposition. N.T. Sentencing, 3/13/96, at 44. The court then sentenced Appellant to an aggregate sentence of fifteen (15) to thirty (30) years' imprisonment and imposed various fines. The trial court denied Appellant post-sentence motions on March 26, 1996. This timely appeal followed.

Appellant presents three claims for our review: (1) whether the lower court abused its discretion in denying Appellant's de-certification motion pursuant to 42 Pa.C.S.A. § 6322(a); (2) whether the trial court abused its discretion in refusing to transfer the case for disposition by a juvenile court judge after the defendant had been acquitted of murder, pursuant to 42 Pa.C.S.A. § 6322(b) and; (3) whether the trial court utilized an incorrect offense gravity score in sentencing Appellant. The Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365,7 sets forth procedures regarding the prosecution of delinquent acts committed by a juvenile. The Act [prior to the amendments] vests exclusive jurisdiction in the juvenile court when a minor has committed any offense other than murder. Commonwealth v. Johnson, 542 Pa. 568, 579, 669 A.2d 315, 321 (1995); 42 Pa.C.S.A. § 6322(a). However, when a minor is charged with murder, jurisdiction remains in the criminal division and any transfer from the criminal division to the juvenile division is within the sound discretion of the trial court. 42 Pa.C.S.A. § 6322(a).8

It is clear from the language of the act that a transfer in a murder case is not a matter of right, and the determination of whether the interests of the state and society require prosecution as an adult is within the sound discretion of the trial court. Moreover, such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based on partiality, prejudice or ill will.

Johnson, 542 Pa. at 568, 669 A.2d at 321. We will address Appellant's first issue in accordance with these standards.

In cases involving a murder charge, when a juvenile seeks a transfer from the criminal division to juvenile division, the "child bears the burden of demonstrating that he or she is amenable to treatment, supervision or rehabilitation as a juvenile by demonstrating that he or she meets section 6355 factors." Commonwealth v. Austin, 444 Pa.Super. 601, 664 A.2d 597, 599 (Pa.Super.1995), appeal denied, 544 Pa. 622, 675 A.2d 1241 (1996) (emphasis original); 42 Pa.C.S.A. § 6322(a). If the court finds that the child is not amenable to treatment, supervision or rehabilitation as provided in the Juvenile Act, the criminal division shall retain jurisdiction. Austin, supra. 42 Pa.C.S.A. § 6355.

The court must consider all of the following factors when determining the minor's amenability to treatment: the age, mental capacity and maturity of the minor; the degree of criminal sophistication of the child; previous records, if any; the nature and extent of the delinquent history; whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction; probation or institutional report; the nature and circumstances of the acts for which the transfer is sought; and any other relevant factors. Johnson, 542 Pa. at 579, 669 A.2d at 321. See also 42 Pa.C.S.A. § 6355(a)(4)(iii)(A).

In its opinion denying the Appellant's motion for decertification, the lower court stated that it considered the following: the notes of testimony from the Appellant's motion to quash the first degree murder charge; the relevant factual information from the notes of testimony from co-defendant Edmonson's de-certification hearing; the statement of the Appellant; a stipulation by counsel that the Appellant had never been placed in the juvenile system and that the juvenile court had refused to certify him as an adult on a robbery charge that arose shortly before this incident; and a stipulation that Dr. Allan Tepper, a forensic psychologist who examined the Appellant at the request of defense counsel and who reviewed the Appellant's juvenile court history, would recommend treatment.9 Trial Court Opinion, 3/7/96, at 2. The court also considered Appellant's age. Id.10 The court additionally stated on the record that it recollected the facts from Appellant's motion to quash the murder charge, the co-defendant's de-certification hearing and the preliminary hearing. N.T. Decertification, 1/11/98, at 7. The court noted that counsel stipulated to Appellant's juvenile record. Id. at 11. The court clarified that it considered this stipulation and a stipulation regarding Dr. Tepper's recommendation.

In her well-reasoned opinion, the Honorable Carolyn Engel Temin sets forth the primary reasons for denying de-certification:

Following his arrest, [Appellant] displayed no signs of remorse. According to a memo prepared by Detective Joseph D. Fischer of the Homicide Division, while he was assisting in the processing of the four defendants in the early morning hours, he was able to observe their demeanor. [Appellant] and Taylor were laughing and talking, whereas Pennington and Edmonson were quiet and crying. [Appellant] and Taylor continued to indulge in morbidly inappropriate behavior, singing rap songs and boasting that Taylor's nickname was "homicide."
This Court finds that [Appellant] was not merely a passive participant in the events and that his participation was therefore different from that of Edmonson. [Appellant] actively participated in beating, kicking and robbing the victim. [Appellant's] active participation in the event, his lack of remorse, his apparent totally dissocial attitude towards the slaughter of another human being, and the degree of criminal sophistication exhibited[,] militate against transferring [Appellant] to juvenile court for disposition.

Trial Court Opinion, 3/7/96, at 4. The court concluded that Appellant was unable to meet the burden placed upon him to demonstrate his amenability to rehabilitation. Id.

It is apparent that the court considered the necessary factors promulgated in 42 Pa.C.S.A. §6355(a)(4)(iii)(A). Appellant argues that the lower court abused its discretion because it only considered the severity of the offense. Appellant cites Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978) for the proposition that one strong factor is insufficient to outweigh "counter veiling [sic] facts strongly weighing against certification." Appellant's Brief, at 10. However, unlike Appellant, the defendant in Greiner was not charged with murder. See Greiner, 479 Pa. at 372,

388 A.2d at 702 (holding that the nature of the crime [other than murder] in and of itself is insufficient to warrant a transfer from juvenile court to criminal court). Consequently, Appellant's reliance on Greiner is misplaced. In reviewing the record of the decertification hearing and the trial court's opinion, it appears that the trial court did not base its decision solely on the severity of the crime and Appellant's lack of remorse, although these factors weighed heavily in the decision. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to decertify Appellant.

Appellant next argues that upon acquittal of murder, the trial court should have transferred the disposition of the case to juvenile court pursuant to 42 Pa.C.S.A. § 6322(b). The trial court denied Appellant's request for a transfer without a hearing. Appellant thus...

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