Commonwealth v. L.P.

• Decision Date: 21 April 2016
• Docket Number: No. 782 MDA 2015,782 MDA 2015
• Citation: 137 A.3d 629,2016 PA Super 89
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. L.P., Appellee.
• Court: Pennsylvania Superior Court

137 A.3d 629

2016 PA Super 89

COMMONWEALTH of Pennsylvania, Appellant

v.L.P., Appellee.

No. 782 MDA 2015

Superior Court of Pennsylvania.

Argued Feb. 2, 2016.

Filed April 21, 2016.

John R. Canavan, IV, Assistant District Attorney, Harrisburg, for Commonwealth, appellant.

James J. Karl, Harrisburg, for appellee.

BEFORE: PANELLA, STABILE, and FITZGERALD,^* JJ.

OPINION BY FITZGERALD

, J.:

The Commonwealth appeals from the order entered in the Dauphin County Court of Common Pleas granting the petition for decertification filed by Appellee, L.P. The Commonwealth argues the trial court erred in finding that transferring L.P. to juvenile court would serve the public interest and that L.P. was amendable to treatment, supervision, or rehabilitation in the juvenile system. We hold the trial court did not abuse its discretion when it considered and weighed the 42 Pa.C.S. § 6355(a)(4)(iii)

factors and granted Appellee's petition for decertification. Thus, we affirm.

We summarize the factual and procedural history of this case, as gleaned from the certified record, as follows. On October 13, 2013, Harrisburg police responded to a dispatch of a shooting near a community center where a dance had been held earlier that evening. Police recovered from the scene approximately five shotgun casings and seven nine-millimeter casings. The police determined that there were two shooters involved, and witnesses identified Appellee, who was fifteen at the time, as one of the shooters. Police believed Appellee shot the nine-millimeter while another juvenile, D.H., used the shotgun. Police believed the intended victim of the shooting was a dance patron with whom D.H. had an altercation at the dance. No one was struck by the nine-millimeter bullets, but people were injured by pellets fired from the shotgun. However, bullets from the nine-millimeter struck a parked van.

On October 17, 2013, Appellee was charged with seven counts of criminal attempt-criminal homicide,¹ and one count each of conspiracy to commit criminal homicide,² aggravated assault,³ possession of firearm,⁴ firearms not to be carried without a license,⁵ possession of firearm by a minor,⁶ and recklessly endangering another person (“REAP”).⁷

On March 16, 2015, Appellee filed a petition for decertification.⁸ The trial court held a hearing on April 22, 2015. Dr. Howard Rosen⁹ performed a psychological examination of Appellee and rendered his opinion on Appellee's amenability to treatment. He testified as to how he formulated his conclusion:

Well, I look to a number of factors. I examined whether or not he had adequate treatment in the past and his responsiveness to that treatment, his level of dangerousness, his intellectual and personality characteristics that would relate to recidivism and further criminality, the history of criminality up to the point where he was put into Dauphin County Prison, and certainly his age, intellectual, and psychological maturity were also considered.

N.T. at 6–7. Dr. Rosen concluded Appellee has a mild intellectual disability and attention deficit hyperactivity disorder

. Id. at 8–9. He detailed Appellee's history of truancy and opined “the truancy was really driven pretty much by his association with a set of delinquent peers who treated him as a gang.” Id. at 13. He explained that previous interventions with Appellee were unsuccessful because “the types of supervision monitoring that was necessary to deal with [Appellee's] level of problem” could not be implemented in his home. Id. at 15. He further opined, regarding criminality, that Appellee, “as a criminal, ... [is] unlikely to be thoughtful and cunning” and “doesn't have the level of planning and ... deceptiveness.” Id. at 20.

Appellee's counsel asked specifically about Dr. Rosen's recommendation for treatment:

Q: ... What was your recommendation for [Appellee]?

A: I believe that [Appellee] would be best served by being in multidimensional treatment foster care. That is a program that essentially provides highly-trained or professional parents in a small family home that's supported by two or three mental health professional teams that are accessible to those professional parents 24 hours a day, 7 days a week.

It has a fairly long course of treatment, generally nine to sixteen months, ... and a very successful track record of addressing serious aggressive problems of students his age with his diagnosis.

Q: Dr. Rosen, when you first came up to testify, you said the word recidivism a couple of times. And I think it is important to know, in terms of the multidimensional treatment or foster care program, do we see high recidivism rates?

A: Well, generally, no. Multidimensional treatment foster care is in the area of 60 to 80 percent successful over an 18–month period. So there are no future arrests or convictions after 18 months for more than half of the youth who complete.

Locally, the programs—the residential programs—are generally 80 percent or less effective six months out. So the recidivism rate for—by comparison of non-evidence-based residential programs—is very poor.

Q: So it would be your opinion that [Appellee] would not be best served in either a state correctional facility with adults or a county-based program for adults of incarceration?

A: Generally speaking, the recidivism rate for juvenile offenders with serious personal aggression charges if they go into an adult facility, the recidivism rate is roughly 25 percent.... [T]he same youth who would be treated in juvenile facilities have a recidivism rate of 15 percent. So in terms of public safety long term, the decision I would recommend would be to retain him as a juvenile.

* * *

Q: In the evaluation that you did, you recommended that [Appellee]—part of his treatment or part of the discussion was that he could attend and complete aggression replacement therapy?

A: Yes.

Q: Why did you recommend that?

A: Well, aggression replacement therapy is an evidence-based program that is delivered as part of group therapy. And the advantage to [Appellee] is that it teaches him about his emotional life, how to identify correctly his emotions, how to better regulate his emotions, be less angry, be less impulsive.

And also ... ten of thirty lessons address morality. And I think having him begin to consider more moral development would be a good choice at his age and development level.

Q: And had he received nothing similar to that in the community prior to the evaluation?

A: Not to my knowledge.

Id. at 21–26.

On cross-examination, the following exchange between the Commonwealth and Dr. Rosen occurred:

Q: Okay. So in this situation, obviously your finding is that he is amendable to treatment?

A: Correct.

Q: In your estimation. And I know there's no guarantees in life, but [do] you think the community would be safe allowing him to reenter it with the treatment plan that you think would be appropriate?

A: I think the risk to the community overall is lower by treating him as a juvenile and getting him treatment and education than what we'd find if he were incarcerated in the adult system.

Id. at 31.

David Botero, co-director and mentor in the “Hope in Handball” youth mentoring program, also testified on Appellee's behalf and described his relationship with Appellee and Appellee's involvement with the program from 2009–2012. See id. at 50–70. He testified the program had a positive effect on Appellee, but he eventually stopped attending because “the streets got ahold of him.” Id. at 63–64. Finally, Appellee presented the testimony of Dauphin County Juvenile Probation Officer Brian Brummett, who testified that Appellee had two contacts with his office prior to the October 2013 shooting. Id. at 76. The first contact involved a failure to pay fines and disorderly conduct, and the second involved charges of possession with intent to deliver controlled substances. Id. at 76–77. He testified Appellee had not served any time in a juvenile residential facility. Id. at 79.

The Commonwealth called as its only witness Detective Jason Paul of the Harrisburg City Police Department. Detective Paul testified that he was the lead detective investigating the shooting. Id. at 87. He explained that Appellee was charged with the above crimes on October 17, 2013; however, he was not apprehended until February 2014. Id. at 95–97. He described the nature of his interview with Appellee, including Appellee's inconsistent accounts and his accusations that Detective Paul was a racist. Id. at 97–99.

The Commonwealth asked Detective Paul about “the impact that guns have had on the City of Harrisburg[.]”:

A: Yeah. I mean, talking to the people that we talked—we had people from the West Shore just there—kids came there to have a good dance. The lady said she threw this dance to try to keep kids off the street so they wouldn't get into any kind of trouble. Nothing would happen. They searched the kids to make sure no weapons were brought into the dance.

It appears you had a couple of kids that came there looking for trouble.... [I]f there was that big of a problem, I don't agree with fighting, but they could have fought if it were that big a deal. Instead, they decided to bring out the guns and fire into the crowd.

Violence in the city is pretty bad, especially with the younger kids. They seem to want to shoot over anything—instead of talking it out or anything to even it out. When I was younger, we'd get in fistfights and that was the end of it. These kids now want to bring out guns, and they have no regard for who's around.

There's kids everywhere. They shot at people who had nothing to do with nothing, and they're just shooting into the crowd. And they're not good with guns to use guns, so they could have killed anybody. It's amazing nobody got killed out there.

Q: In your experience, does the prevalence of guns ... make potential witnesses less cooperative in terms of assisting with the prosecution?

A: Yeah. Even the victims, nobody wanted to cooperate. We had the kid that testified at [D.H.]'s thing. We basically had

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