Com. v. McDonald

• Decision Date: 19 November 1990
• Citation: 399 Pa.Super. 250,582 A.2d 328
• Parties: COMMONWEALTH of Pennsylvania v. Michael McDONALD, Appellant.
• Court: Pennsylvania Superior Court

Page 328

582 A.2d 328

399 Pa.Super. 250

COMMONWEALTH of Pennsylvania v. Michael McDONALD, Appellant.

Superior Court of Pennsylvania.

Submitted April 23, 1990.

Filed Sept. 11, 1990.

Reargument Denied Nov. 19, 1990.

Marlene Cooperman, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before KELLY, HUDOCK and HESTER, JJ.

KELLY, Judge:

In this case we are called upon to determine whether the trial court provided an adequate statement of its reasons for certifying the juvenile appellant to be tried as an adult. Applying the reasoning espoused by our Supreme Court in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1989), we find the certification statement adequate, and the grounds for certification sufficient. Consequently, we affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On July 4, 1988, John Sanders, age 20, was squirting the fifteen year old appellant and a friend, Paul James Oliver, with a squirt gun in the stairwell of a public housing building where he and appellant lived. Both Paul Oliver and appellant insisted that he stop squirting them. When Paul saw appellant draw a real gun from his waist band, however, Paul pleaded with appellant not to play around with the gun because it might be loaded and go off. Apparently enraged at being squirted with water, appellant aimed the gun at John Sanders, and stated coldly, "watch this." He then shot John Sanders in the neck from a distance of six feet, which sent John Sanders tumbling down the stairwell with a bullet in his neck.

John Sanders was taken to the hospital for emergency treatment. His bleeding was controlled, but the bullet was lodged too close to the spinal cord to be surgically removed. After five days in the hospital, John Sanders was sent home with a bullet still in his neck. The bullet had not been removed by the time of the trial in this case; rather, it had actually migrated even closer to John Sander's spinal cord.

A delinquency petition was initially filed against appellant charging him with aggravated assault and related offenses. A preliminary hearing was held on the petition, and a prima facie case was found to have been established. Subsequently, an amenability hearing was held on August 5, 1988. Appellant was certified to be tried as an adult.

On May 2, 1989, following a jury trial, appellant was convicted of aggravated assault and a firearms offense. Post-verdict motions were filed, briefed, argued, and denied. Appellant was sentenced to the mandatory minimum term of five to ten years imprisonment. This timely appeal follows.

The sole issue raised on appeal is whether the trial court erred or abused its discretion in certifying appellant for trial as an adult. In support of this contention appellant interweaves two basic arguments: procedurally, the trial court's statement of reasons for certification was inadequate; and substantively, the trial court abused its discretion in deciding that certification was appropriate. We find the arguments to be without merit.

I. Adequacy of the Statement of Reasons for Certification

Appellant contends that the juvenile court failed to provide a sufficient statement of its reasons for certifying appellant to be tried as an adult. Appellant relies upon various cases which have held that a specific statement of grounds for certification must be provided. See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1968); Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985); Commonwealth v. Broome, 317 Pa.Super. 1, 463 A.2d 1053 (1983); Commonwealth v. Deppeller, 314 Pa.Super. 368, 460 A.2d 1184 (1983); Commonwealth v. Lux, 299 Pa.Super. 136, 445 A.2d 185 (1982); Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980). We find no merit in the contention.

At the amenability hearing the juvenile court was provided with an abundance of information through the juvenile file and the arguments of prosecution and defense. The prosecution informed the court that appellant was 15 years old and had two separate outstanding charges pending at the time of the instant offense: one for possession with intent to deliver eighty-two packets of cocaine (while also in possession of $720.00 cash); and a second for theft arising from an attempt with two others to steal a car (which was foiled by an officer who apprehended appellant and his co-conspirators in flagrante delicto ). The prosecutor also noted that had the bullet fired by appellant at John Sanders been five inches higher, this case would have been for murder rather than aggravated assault, and certification would have been automatic.

Detailed mental health reports were prepared and were included in the juvenile file reviewed by the trial court. Dr. Zanni's psychiatric report indicated the absence of any psychotic disorder which would require mental commitment. Dr. Moberg's psychological profile indicated that appellant's IQ was "low average," and that "a secure, well-structured placement" would be appropriate.

School records were also included in the juvenile file. The records revealed that appellant was a chronic truant who (not surprisingly in light of his chronic truancy) did poorly in school.

After the factual information was submitted and reviewed, the juvenile court entertained argument from both prosecution and defense. The prosecution argued for certification. It focused on the extreme seriousness and callousness of this offense, the presence of two outstanding arrests, and appellant's chronic truancy. The defender argued against certification focusing on the absence of prior juvenile placements, the lack of school disciplinary problems, and appellant's youth.

Upon considering the foregoing information and arguments, the juvenile court decided to grant the petition for certification. The juvenile court explained at that time:

THE COURT: The difference between this case and a case of murder where the defendant would automatically be transferred to adult court is that the complainant was probably standing a quarter inch further north then he would have been if he had been, if he had not been walking away from the defendant. Were it not for that fact obviously he would be dead. He was shot in the neck.

The question of his treatment, rehabilitation and supervision does not seem to rise in those areas. For some reason or other, where a person intends murder, the question of rehabilitation, supervision and so forth does not become as critical because of what we are supervising against.

In this case, it appears that the defendant who is a child, intended to murder a person who sprayed him with a water pistol. That would suggest that if any treatment or rehabilitation is to be accomplished there would not be much to build on. Apparently, the young man has not had treatment, rehabilitation or supervision in the past, certainly not in the juvenile system. But, I'm not sure that all persons, that the Commonwealth can treat all persons who come before it.

In this case, because of the extremely exaggerated response to the provoking act, the Court believes that the Commonwealth of Pennsylvania would have to start at a point that it can never reach.

Any treatment, rehabilitation or whatever that was to have been done should have been done a long time ago. I don't think there's enough to build on and for that reason I'm allowing the Commonwealth to take this case to adult court.

(N.T. 8/5/88 at 11-13). (Emphasis added). The juvenile court expressly considered the potential for rehabilitation in the juvenile system, as well as the seriousness and callousness of the offense.

The trial court opinion, in response to appellant's post-verdict motions, expanded upon the juvenile court's statement as follows:

Lastly, defendant asserts that the certification of defendant was contrary to the law: that the certifying judge failed to consider the factors essential to certification, particularly that Judge Reynolds failed to consider that the child/defendant was amenable to rehabilitation within the jurisdiction of the juvenile court system and that the certifying judge abused his discretion in certifying defendant.

We rejected the argument. In an independent review of the record, we found that Judge Reynolds considered all the essential factors and that his judgment was well within his discretion. There were two hearings: 1) the preliminary hearing to determine whether there was a prima facie case and 2) an amenability hearing.

The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., provides that a youth of fourteen (14) years of age or older may be tried as an adult, the burden being on the Commonwealth to prove that the child-offender be tried as an adult. Commonwealth v. Rush, 522 Pa. 379, 562 A.2d 285 (1989).

The certifying court must determine if the evidence demonstrates:

(i) that there is a prima facie case that the child committed the delinquent act alleged;

(ii) that the delinquent act would be considered a felony if committed by an adult; and

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

Age.

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.

The nature and circumstances of the acts for which the transfer is sought.

Any other relevant factors.

(B) That the child is not committable to an institution for the mentally...