Com. v. Johnson

• Decision Date: 07 December 1994
• Citation: 435 Pa.Super. 132,645 A.2d 234
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Stephon JOHNSON, Appellee.
• Court: Pennsylvania Superior Court

Page 234

645 A.2d 234

435 Pa.Super. 132

COMMONWEALTH of Pennsylvania, Appellant, v. Stephon JOHNSON, Appellee.

Superior Court of Pennsylvania.

Argued Dec. 7, 1993.

Filed July 5, 1994.

Petition for Allowance of Appeal Granted Dec. 7, 1994.

Jenifer Shirey, Asst. Dist. Atty., Erie, for the Com., appellant.

John M. Bonanti, Erie, for appellee.

Before ROWLEY, President Judge, and McEWEN, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

POPOVICH, Judge:

Today, we are presented with a most unusual appeal by the Commonwealth from a juvenile adjudication of delinquency and subsequent disposition. Herein, appellee, the juvenile, was charged with murder and related offenses in the criminal division of the Erie County Court of Common Pleas. However, pursuant to appellee's petition, the case was transferred to the juvenile division of the court, and appellee was adjudicated delinquent. Never before has the Commonwealth questioned the propriety of an order transferring a case from the criminal division to the juvenile division of the court of common pleas after the juvenile has been adjudicated delinquent and committed. Thus, we are presented with a case of first impression. ¹

Herein, we are asked to resolve several difficult questions, the first two of which, in turn, require us to examine the definition of "jurisdiction" as it applies to juvenile transfer orders. First, we must determine whether the Commonwealth has filed this appeal in a timely manner. Second, we must decide whether the Commonwealth is nevertheless prohibited from prosecuting appellee as an adult in the criminal division of the court of common pleas by the double jeopardy protections of the United States and Pennsylvania Constitutions which were made applicable to juvenile proceedings by the United States Supreme Court in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Third, assuming the appeal is timely and the adult prosecution is not barred by the prohibition against double jeopardy, we must decide whether the lower court, i.e., the judge of the criminal division of the court of common pleas, committed a gross abuse of discretion in transferring appellee's case to the juvenile division. See, Leatherbury, 568 A.2d at 1315 (standard of review for transfer orders); Commonwealth v. Brown, 332 Pa.Super. 35, 40, 480 A.2d 1171, 1174 (1984) (same).

The record reveals that on October 18, 1991, appellee, then sixteen years of age, conspired with two acquaintances, Antonio Howard and Richard Noble, to commit a robbery. ² Having been unsuccessful in an earlier attempt to rob a grocery store, the boys decided to rob the driver of their taxi cab, Richard Stevens. During the robbery, Mr. Stevens was shot in the head by Richard Noble. Appellee removed a clip-board and satchel from the taxi, and the minors fled. Ten days later, appellee was arrested and charged with murder, robbery, theft, criminal conspiracy and receiving stolen property.

Following the arrest, the Commonwealth filed its notice of intention to seek the death penalty, and appellee petitioned the court to transfer his criminal prosecution to the juvenile division for disposition under the terms of the Juvenile Act. See, 42 Pa.C.S.A. § 6301, et seq. Following a hearing, the criminal court determined that appellee was amenable for treatment, supervision or rehabilitation as a juvenile. See, 42 Pa.C.S.A. §§ 6322(a), 6355(a)(4)(iii)(A). Accordingly, appellee's case was transferred to the juvenile division of the court. An adjudicatory hearing was held in the juvenile division, and appellee was found to be delinquent based upon charges of murder, robbery, theft, criminal conspiracy and receiving stolen property. Subsequently, a disposition hearing was held, and appellee was committed to the New Castle Youth Development Center for an indefinite period of time. The Commonwealth then filed this appeal which questions the propriety of the order transferring appellee's case from the criminal division to the juvenile division.

First, we will address the question of whether the Commonwealth has filed its appeal in a timely manner. As a general rule this court accepts appeals only from final orders. 42 Pa.C.S.A. § 742. The Commonwealth argues that an order which transfers prosecution of a minor from the criminal division of the court of common pleas to the juvenile division is interlocutory and not appealable unless and until a final disposition order is entered. In support of their argument, the Commonwealth cites 42 Pa.C.S.A. § 6355(f), which provides: "The decision of the court to transfer or not to transfer the case shall be interlocutory." Such a definitive recitation of the law would ordinarily be dispositive but for the fact that § 6355 of the Juvenile Act applies expressly to transfers from the juvenile division to the criminal division only. That section says absolutely nothing about the status of orders which grant or reject transfers in the opposite direction, i.e., from the criminal division to the juvenile division. In fact, the section of the Juvenile Act which governs transfer of juveniles charged with murder from the juvenile division to the criminal division is silent regarding whether an order granting or denying such a transfer is interlocutory. See, 42 Pa.C.S.A. § 6322. ³ The Commonwealth points to other authority for the proposition that all transfer orders are interlocutory, and, therefore, the current appeal is timely. The most significant of the cases cited by the Commonwealth is Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). Since not only the issue of whether a transfer order is interlocutory but also the issue of whether such an order is "jurisdictional" are affected by Pyle, supra, an in-depth review of the case is required. Our Supreme Court's decision in Pyle, supra, specifically footnote 4, Id., 342 A.2d at 103 n. 4, has been cited by the Supreme Court and this court for the general proposition that the issue of certification from the criminal division to the juvenile division is jurisdictional and therefore not waivable. See, Moyer, 497 Pa. 645, 444 A.2d at 102; Leatherbury, 390 Pa.Super. 561, 568 A.2d at 1315; Zoller, 345 Pa.Super. 354, 498 A.2d at 438. ⁴

In Pyle, supra, the juvenile was charged with murder and, thus, he was subject to prosecution before the criminal division of the court. He then petitioned the court to transfer his case to the juvenile division of the Chester County Court of Common Pleas. However, before his transfer hearing was held, the additional, related charge of theft was filed in the juvenile division, and the Commonwealth moved to have the theft charge transferred to the criminal division for a consolidated prosecution. The court then ruled that the transfer hearing and subsequent decision would apply equally to both charges, i.e., if the murder charge remained in the criminal division, then the theft charge would be transferred to the criminal division. Following a hearing, the court determined that the juvenile was not amenable for treatment under the provisions of the Juvenile Act, and both charges were set for prosecution in criminal court. The juvenile pleaded guilty to both charges, and he was sentenced. Subsequently, the juvenile appealed the propriety of the order denying transfer of the murder charge to juvenile court and granting transfer of the theft charge to criminal court.

In Pyle, supra, our high court first had to resolve the issue of whether the juvenile could appeal the two separate, but related, transfer decisions, given the fact that he pleaded guilty to the crimes. In footnote 4, our Supreme Court stated:

Absent unusual circumstances, a guilty plea constitutes a waiver of any non-jurisdictional defects or defenses. Commonwealth ex rel. Bostic v. Cavell, 424 Pa. 573, 576, 227 A.2d 662, 664 (1967); Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 341 n. 2, 223 A.2d 699, 701 n. 2 (1966). However, since one of the prime purposes of the Juvenile Act is to spare from adult punishment certain youths whose behavior would necessarily render them guilty of adult crimes (including in some instances, the crime of murder) and since the decision to, or not to transfer is interlocutory--11 P.S. 50-325(f)--and thus only appealable after sentencing (see Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Lockhart, 220 Pa.Super. 421, 289 A.2d 248 (1972)) we find the instant challenge to be properly preserved.

Pyle, 462 Pa. 617, 342 A.2d at 103 n. 4 ⁵

As previously stated, the afore-quoted footnote has been summarily cited (without discussion or analysis) by our Supreme Court in Moyer, supra, and by this court in Leatherbury, supra, and Zoller, supra, inter alia for the general proposition that "this issue of certification is jurisdictional and therefore not waivable." Moyer, 497 Pa. 646, 444 A.2d at 103. The Commonwealth submits that since transfer orders are "interlocutory" and "jurisdictional", its failure to appeal the transfer order immediately cannot act as a waiver of the issue.

While we agree with the Commonwealth that our Supreme Court has given transfer orders the generic labels of "interlocutory" and "jurisdictional", we do not agree that we must blindly apply those terms (in their most expansive and comprehensive meanings) to the transfer order sub judice, the type of which our Supreme Court has never previously considered. We agree that the transfer order in question is "interlocutory". However, an appeal by the Commonwealth from an order transferring a minor's case to juvenile court after the juvenile adjudication presents double jeopardy implications which are clearly not present when the minor is the party who appeals the propriety of a transfer order. It makes sense that an order which denies a juvenile's request for transfer from the criminal division to the juvenile division such as those in Pyle, supra, Moyer, supra, Leatherb...