George S., In Interest of
| Decision Date | 20 April 1981 |
| Parties | In the Interest of GEORGE S., III. Appeal of GEORGE S., III. |
| Court | Pennsylvania Superior Court |
Argued June 12, 1980.
F. Michael Friedman, Media, for appellant.
Kristine F. Hughey, Asst. Dist. Atty., Media, for Commonwealth participating party.
Before BROSKY, HOFFMAN and CIRILLO, JJ. [*]
In June 1979, appellant, George S., III, a juvenile was arrested and charged with having committed certain delinquent acts. [1] Following the filing of several petitions alleging delinquency, a hearing was held in juvenile court on July 3 1979. Although there was some uncertainty at the beginning of the proceeding as to whether it was for transfer of adjudication, the hearing judge, after making findings in accordance with 42 Pa.C.S.A. § 6355, entered an order transferring the case to the criminal division.
Following the transfer order, the district attorney filed criminal informations, and the juvenile filed omnibus pretrial motions to dismiss on the ground that he would be twice placed in jeopardy by adult criminal proceedings. Subsequently, the criminal division entered an order stating that to try appellant would place him twice in jeopardy but stating also that "we do not agree that the Defendant should be 'discharged' from the above Informations and also on the Juvenile Complaints." It ordered that the informations be quashed and the transfer order revoked and that the defendant be remanded to the juvenile division. The juvenile then filed a motion to dismiss on double jeopardy grounds. On October 30, 1979, a hearing on defendant's motion was held and it was denied. The hearing judge, asked by the Commonwealth to make a final determination based upon the notes of testimony of the July 3 hearing, decided not to proceed with the matter after being informed by defense counsel that counsel intended to take an immediate appeal to the Superior Court on the double jeopardy issue. This appeal followed.
The issue for our determination is whether further proceedings in the juvenile court would place the appellant twice in jeopardy. The court below, in denying defendant's motion to dismiss, held that he had not been exposed to double jeopardy. We affirm.
Before we can address the merits of the instant appeal, we must first determine whether the matter is properly before us at this time. The Commonwealth contends that the order appealed from is interlocutory in nature. It is axiomatic that only final orders are appealable to our court. 42 Pa.C.S.A. § 742.
In Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), our Supreme Court held that where a motion alleging the ground of double jeopardy is denied, the order is final and hence, appealable. Balancing the interests of the finality rule against the need for immediate review, the court in Bolden found that the need for immediate appellate review took precedence in the factual situation before it. Bolden dealt with an appeal which was taken prior to judgment of sentence being imposed. Under the Juvenile Act, [2] disposition is analogous to the imposition of sentence by the criminal division, since one of the dispositional options is placement of the juvenile in a youth correctional facility. [3] Disposition, therefore, may result in the deprivation of liberty for many years.
In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), decided two months after Bolden, the United States Supreme Court held that a criminal defendant is entitled to have an appellate court rule on his double jeopardy claim in advance of trial, stating that "If a ... defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge ... must be reviewable before that subsequent exposure occurs." Id. at 661-662, 97 S.Ct. at 2041 (emphasis in original).
Therefore, we hold that the order denying appellant's motion to dismiss on double jeopardy grounds is appealable. By so holding, we are ensuring that appellant's rights will not be forfeited. See Commonwealth v. Bolden, supra.
We now turn to the merits of the appeal sub judice. Appellant argues that when the July 3 hearing began, he was exposed to the risk of being adjudicated a delinquent which risk constitutes "jeopardy" under both the Pennsylvania and United States Constitutions. [4] The subsequent transfer to adult court did not, he maintains terminate that risk. Upon remand back to the juvenile court, he asserts, he is again faced with the risk of being found delinquent and, therefore, if further proceedings are held, he will be twice placed in jeopardy. Appellant relies heavily upon the case of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), to support his position.
In Breed, arising in California, a petition was filed in juvenile court alleging that defendant was a person described by the California Welfare and Institutions Code § 602 (1966), [5] in that he had committed acts which, if committed by an adult, would constitute the crime of robbery. An adjudicatory hearing was held, at which the court found that the allegations in the petition were true and that defendant was a person described by § 602 and sustained the petition.
At a hearing two weeks later, the court indicated its intention to find the defendant not amenable to the treatment available through the juvenile court system. The court thereafter declared defendant "unfit for treatment as a juvenile" and ordered that he be prosecuted as an adult. Defendant thereafter sought habeas corpus relief in the juvenile court, the California Court of Appeals and the state Supreme Court on the ground of double jeopardy which relief was denied.
After a preliminary hearing, defendant was ordered held for trial in Superior Court, where an information charging him with robbery was filed. He entered a plea of not guilty and also pleaded double jeopardy. The court, after hearing, found him guilty of robbery and ordered that he be committed to the California Youth Authority. Following the filing of a petition in the District Court for habeas corpus and the reversal by the Court of Appeals of the District Court's denial of the petition, the United States Supreme Court granted certiorari to decide "whether the prosecution of respondent as an adult, after juvenile court proceedings which resulted in a finding that respondent had violated a criminal statute and a subsequent finding that he was unfit for treatment as a juvenile, violated the Fifth and Fourteenth Amendments to the United States Constitution." Id. at 520, 95 S.Ct. at 1781.
The court held that the defendant was placed in jeopardy at the adjudicatory hearing in juvenile court and that the subsequent prosecution in adult court placed him twice in jeopardy for the same offense. It stated:
We believe it is simply too late in the day to conclude ... that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.
Id. at 529, 95 S.Ct. at 1785 (emphasis added).
The court in Breed was addressing itself to a situation in which an adult criminal trial was held after an adjudicatory proceeding in juvenile court at which a juvenile was found to have committed acts which violated state criminal law. We are not confronted with such a factual situation in the case at bar. Instead, we are faced with a situation in which a hearing was held in juvenile court in accordance with the transfer provision of the Juvenile Act, [6] resulting in the court ordering the juvenile transferred to adult court following which the adult court declined to hear the case and thus remanded it back to the juvenile...
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