Com. v. Kocher

Decision Date13 February 1992
Citation529 Pa. 303,602 A.2d 1308
PartiesCOMMONWEALTH of Pennsylvania v. Cameron R. KOCHER, Petitioner.
CourtPennsylvania Supreme Court

Charles C. Hansford, James D. Crawford, Victor L. Streib, Cleveland, Ohio, pro hac vice, for petitioner.

Martha Bergmark, Hattiesburg, Miss., for amicus National Legal Aid and Defender Ass'n.

Lenore Gittis, Janet R. Fink, New York City, for amicus The Legal Aid Soc.

Charles P. Gelso, David McGlaughlin, Wilkes-Barre, Joseph L. Vullo, Philadelphia, for amicus Pennsylvania Assoc. of Crim. Defense Lawyers.

Mark Pazuhanich, Special Prosecutor, for respondent.



NIX, Chief Justice.

The issue before us is whether the Court of Common Pleas abused its discretion in denying the petition of a nine-year old accused of murder to transfer his case to the juvenile court pursuant to Section 6322(a) of the Juvenile Act, 42 Pa.C.S. § 6322.

The facts of this case require recitation. On the morning of March 6, 1989, a snow holiday from school, Jessica Ann Carr was fatally shot while riding as a passenger on a snowmobile owned by Mr. and Mrs. Richard Ratti, neighbors of the petitioner. On that morning, petitioner had been playing Nintendo 1 at the Rattis' home but stopped playing when Mr. Ratti forbade the children to play because the children had made a mess in the kitchen. Some children, the victim included, started riding snowmobiles but the petitioner returned home. At some point after returning home the petitioner procured the key to his father's locked gun cabinet and removed a hunting rifle equipped with a scope. He loaded the weapon with ammunition, opened a window, removed the screen, and pointed the gun outside. The gun discharged, striking Jessica Ann Carr in the back and fatally wounding her. The scope of the rifle struck the petitioner's forehead and left a visible wound. He returned the rifle to the gun cabinet and hid the empty shell casing.

On March 8, 1989, the petitioner was arrested and charged with criminal homicide in the Court of Common Pleas of Monroe County. After being arraigned, he was released on bail to the custody of his parents.

Petitioner petitioned the court for transfer of the matter to juvenile court pursuant to Section 6322 of the Juvenile Act. The Commonwealth ordered a psychiatric evaluation of the petitioner. The Court of Common Pleas heard testimony on April 20 and 21 and May 25 and 26, 1989. Dr. Harris Rabinowich, a board certified child psychiatrist who had examined the petitioner at the state-ordered evaluation, testified on behalf of the Commonwealth. Psychiatrists Robert Sadoff, M.D., and Marsha Turnberg, M.D., and psychologist Robert G. Chupella, testified on behalf of the petitioner. On June 23, 1989, the Court of Common Pleas rejected petitioner's transfer request.

On July 29 and August 1, 1989, a preliminary hearing was held in which petitioner was bound over for trial on an open charge of criminal homicide, two counts of aggravated assault, and one count of recklessly endangering another person. Petitioner filed a Petition for Review of the Transfer Decision with the Superior Court of Pennsylvania which was denied. In the petition before this Court, petitioner raises six arguments. We need only address petitioner's argument that the lower court's construction of the Juvenile Act creates unreasonable criteria for the transfer of a juvenile from criminal court to juvenile court. 2 Because we remand the case for a determination of whether petitioner is amenable to treatment, supervision, and rehabilitation under the Juvenile Act, we need not address the other issues raised by petitioner.

In reviewing the exercise of discretion by the Court of Common Pleas, we are guided by precedent which established that

[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will as shown by the evidence or the record, discretion is abused.

Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982). Applying this test to the instant case, we hold that the trial court abused its discretion when applying the criteria under Section 6355 of the Juvenile Act.

Under the Juvenile Act of Pennsylvania, 42 Pa.C.S. § 6301 et seq., an allegation of murder automatically removes the proceedings from the jurisdiction of the juvenile court. See 42 Pa.C.S. § 6302 (definition of "delinquent act"). 3 In the past, murder was considered a crime so heinous that it could not be considered in juvenile court, and the adult criminal court would have no discretion to transfer a case alleging murder to the juvenile court. See Commonwealth v. Pyle, 462 Pa. 613, 618, 342 A.2d 101, 104 (1975). The statute was amended to grant the criminal court the discretion to determine whether the juvenile charged with murder would be amenable to treatment, supervision, and rehabilitation under the juvenile system and, therefore, could be tried in juvenile court. Id. at 619, 342 A.2d at 104; see 11 P.S. § 50-303 (1972) repealed and reenacted at 42 Pa.C.S. § 6322 (1983). After the Legislature amended the Juvenile Act to allow a juvenile charged with murder to be transferred to juvenile court, this Court held in Commonwealth v. Pyle, the first case to reach the Supreme Court of Pennsylvania involving the discretionary transfer of a murder case to juvenile court, that Subsection 28(a) of the Juvenile Act, (regarding transfer of juveniles to adult criminal court), provided the proper criteria for the criminal court to use when considering a petition for transfer of a murder case to juvenile court. 462 Pa. 613, 342 A.2d 101 (1975). 4 In Pyle, we affirmed the trial court's denial of a juvenile petition to transfer his murder case from the Court of Common Pleas to juvenile court, and held that the burden was on the juvenile to prove he was amenable to treatment under the juvenile system. Id. In Commonwealth v. Romeri, this Court upheld the trial court's decision not to transfer a juvenile murder case to juvenile court. 504 Pa. 124, 138-39, 470 A.2d 498, 505 (1983). In that decision we relied on our earlier decision in Pyle. Id. at 137-138, 470 A.2d at 505. In 1986, the legislature amended Section 6322(a) to specify the criteria to be weighed by the criminal court. 5 The legislature, reflecting the belief that murder still required special treatment (i.e., exclusion) under the juvenile system, placed the burden on the child to persuade the court that the child was amenable to treatment under the juvenile system. See supra note 4; Pyle, 462 Pa. at 623, 342 A.2d at 106.

The factors to be considered by the criminal court for transfer are delineated in the following section of the Pennsylvania Juvenile Act:

§ 6355. Transfer of criminal proceedings

(a) General Rule

* * * * * *

(4) The court finds:

* * * * * *

(iii) that there are reasonable grounds to believe all the following:

(A) that the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency. In determining this the court shall consider the following factors:


Mental capacity.


The degree of criminal sophistication exhibited by the child.

Previous records, if any.

The nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the Juvenile Court to rehabilitate the child.

Whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction.

Probation or institutional reports, if any.

Any other relevant factor.

42 Pa.C.S. § 6355. 6 The trial court applied these criteria to the facts of the case. We are here called upon to assess the court's application of these provisions.

The Court of Common Pleas found Cameron Kocher to be a normal fourth grader of above-average intelligence with an above-average school record. He was a good student who exhibited occasional inattentiveness. He related well to others in his school, community, and church, and he possessed an average level of maturity and physical development. His home life was stable, close-knit, and supportive. The child exhibited no physical, mental, emotional, or behavioral disorders and had no previous criminal or delinquent history. The trial court considered these factors favorable to his application for transfer.

Conversely, the trial court's analysis of the nature of the crime and the level of criminal sophistication weighed against the petitioner's petition for transfer. When he fired the rifle, he endangered the driver of the snowmobile and the other children playing in the area. His manipulation of the gun and the window, and his dishonesty about the cut on his forehead to his parents and police reflected an adult level of criminal sophistication and knowledge. He appeared to show no remorse for the crime. The petitioner was quoted as saying, "If you don't think about it, you won't be sad," to one of the neighbors' children as the victim lay dying in the Rattis' home. These factors weighed heavily against the petitioner's petition for transfer.

The trial court addressed the issue of the petitioner's capacity to commit the crime in four distinct contexts: first, the overall mental capacity under Section 6355(a)(4)(iii)(A); second, the common law rebuttable presumption that children between the ages of 7 and 14 are not capable of forming the requisite criminal intent to commit a crime; third, the capacity of the child to stand trial competently; and fourth, the petitioner's capability of forming the specific intent to commit murder.

Dr. Rabinowich, a witness for the Commonwealth, testified that the child had the capacity to commit...

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