Smith, In Interest of

• Decision Date: 14 August 1990
• Citation: 396 Pa.Super. 624,579 A.2d 889
• Parties: In the Interest of Christopher Michael SMITH, a Juvenile. Appeal of Christopher Michael SMITH.
• Court: Pennsylvania Superior Court

Page 889

579 A.2d 889

396 Pa.Super. 624

In the Interest of Christopher Michael SMITH, a Juvenile.

Appeal of Christopher Michael SMITH.

Superior Court of Pennsylvania.

Argued June 7, 1990.

Filed Aug. 14, 1990.

Basil G. Russin, Chief Public Defender, Kingston, for appellant.

James P. Phillips, Jr., Asst. Dist. Atty., Lake Ariel, for Com., participating party.

Before CAVANAUGH, TAMILIA and CERCONE, JJ.

TAMILIA, Judge:

This is an appeal from the March 16, 1990 dispositional Order ¹ entered following appellant's adjudication of delinquency on the charge of involuntary manslaughter. ² Appellant, who was 17 years old at the time, was charged with both voluntary and involuntary manslaughter following the shooting death of Richard Hillman. On December 20, 1989, after an adjudication hearing, the trial judge dismissed the charge of voluntary manslaughter because he found appellant "was justified in killing Richard Hillman for self-protection" (H.T., 12/20/89, p. 9). However, the trial judge found him guilty of involuntary manslaughter because he "was guilty of reckless and grossly negligent conduct when he undertook to introduce a loaded revolver into the differences between him and Richard Hillman" (H.T., p. 11).

The facts leading to Richard Hillman's death, as summarized by the trial court, are as follows:

"The juvenile, Christopher Smith, and his girlfriend, Nicole Gialanella, attended several graduation parties on the evening of the 10th of June, 1989, including one at the home of Lisa Petruskas, not far from the home of the juvenile. They arrived at approximately 10:00 and that was where Nicole had intended to spend the night. Richard Hillman was also at the party. A couple of Chris' friends approached him, told him to stay away from Richard Hillman because he was threatening to beat Chris up because Chris was trespassing on his turf." Apparently referring to Chris' escort, Nicole, who had in the past dated Richard Hillman.

Richard did come up to Chris, held up his fingers about four inches apart to show how close he was to beating Chris up. He also said that he could cock back and nail Chris, but he wouldn't do it because Chris was only about 105 pounds. Chris walked away from him and went for a walk with Nicole to avoid trouble.

Richard and one Gerald Gizenski followed them and one of them allegedly threw a bottle that broke at their feet; Nicole being barefoot. Chris also alleged that Rich tried to trip him, but with the help of one Brian Hampel the couple eluded Richard Hillman and returned back to the Petruskas house. It was during this episode that Chris called Rich "a no good drunken bum and he would never amount to anything." Rich got mad, but Brian Hampel held him back.

Chris thereupon left in his car and drove hurriedly away. He went directly home, took a shower and was preparing for bed when he heard a car coming up the driveway. Chris got dressed and went out expecting to see Nicole. Richard Hillman was at the base of the driveway urinating. Chris said to Rich, "I want to settle things peacefully." At this time it was getting light; in other words, day was breaking. Richard said he was going to get even or get back because of what he, Chris, had said at the party.

Then Chris went into the house and into his parent's bedroom and grabbed his father's .22 pistol out of a dresser drawer. It was loaded at the time. It was in a holster and loaded at the time he took it. He went out, met Rich apparently at the patio. Rich gave him a slap with his open hand and grabbed him by the collar of his sweatshirt demanding an apology. Chris said, "I apologize." There was a struggle which carried the two from the patio through the room door and into the living room and onto a couch. Apparently Chris pushed Richard off him and at that time he, Richard, came around and said that he wanted to shoot a couple of rounds.

They started off the patio and Chris at this time started to put the gun away, retreived [sic] it when he came around. Richard came back to the patio. His mood had changed. Richard Hillman was calling him a pussy and saying that he would not shoot him. He further suggested, "Go ahead and shoot me; it would be self-defense." The juvenile at this time had trouble getting the safety off the gun. Richard came towards him and he raised his fist. The juvenile shot one shot into the air, but it didn't stop the victim, the decedent. Then the juvenile shot once into his body, but he kept coming and the juvenile then shot him in the head. From other evidence in the case death was simultaneous with the shot to the head.

(H.T., pp. 3-5.)

At the March 16, 1990 dispositional hearing, the trial court found appellant in need of care, treatment and rehabilitation and directed that appellant, upon his qualification for high school graduation, be committed to St. Gabriel's, a youth correctional institution, where he would remain until he reached 21 years of age. Appellant was then released into his parents' custody.

Appellant moved for the trial judge's recusal on March 21, 1990, and the court stayed appellant's disposition pending resolution of the motion. On May 1, 1990, the trial court rescinded and vacated the March 21, 1990 Order. On May 7, 1990, appellant moved to modify disposition, and the trial court issued upon the Commonwealth a rule to show cause why the requested relief should not be granted and scheduled a hearing for June 4, 1990. Appellant filed a timely notice of appeal on May 17, 1990, and on May 18, 1990, the trial court issued an Order continuing the reconsideration hearing believing it was without jurisdiction because an appeal had been filed.

This case involves a tragic episode for the two teenagers involved and their families. Procedurally it is in disarray because of a failure to follow the requirements of the Juvenile Act, 42 Pa.C.S. § 6301 et seq., while attempting to conform to the Rules of Criminal Procedure in a manner not provided for by law. The disposition of the case is also in error because the trial court made mutually exclusive findings of fact and conclusions of law, thereby entering a dispositional Order which cannot be legally sustained. The trial court also provided cause for a motion of recusal by his statement, sympathetic to the victim, arising from his own personal family situation, which we need not pass upon in view of our disposition of this case. We touch upon the recusal motion only as it affects the procedural question as to whether or not the case should be quashed and remanded for consideration of that motion and the motion for reconsideration of sentence.

Initially, we address the Commonwealth's requests to dismiss the appeal due to appellant's failure to file post-trial motions and his untimely motion for modification of sentence. Both appellee and appellant rely on the Rules of Criminal Procedure as the basis for their post-dispositional actions. In Commonwealth v. Clay, 376 Pa.Super. 425, 546 A.2d 101 (1988), we dealt with the question of post-trial motions extensively as it relates to appeals in juvenile cases.

We observe at the outset that the Juvenile Act, unlike its predecessors, does not provide for post-trial motions or relief, and the procedures for post-trial review contained in the Pennsylvania Rules of Civil Procedure do not apply to juvenile proceedings unless specifically provided otherwise. Pennsylvania Rule of Criminal Procedure 1(a) provides:

These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.

In the note to Rule 1, it is stated:

These rules apply to proceedings involving juveniles only to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court. See, e.g., Juvenile Act §§ 6302-6303, 6355, 42 Pa.C.S. §§ 6302-6303, 6355 (1982); Vehicle Code 75 Pa.C.S. § 6303 (1977).

Nor may post-trial proceedings be introduced by reason of local rules as the authority to impose local rules must flow from the Juvenile Act, which does not grant such authority, or pursuant to Rule 1(b) of the Rules of Criminal Procedure, which is not applicable. Pennsylvania Rule of Criminal Procedure 6 provides:

b) Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.

As stated above, Rule 1 provides the Rules of Criminal Procedure do not apply to juvenile proceedings so that a local rule could not impose those rules on such proceedings. Additionally, the Juvenile Act is sui generis and was meant by the legislature to be twofold in purpose: to protect the public interests and rehabilitate youthful offenders. [In the Interest of ] McDonough [287 Pa.Super. 326, 430 A.2d 308 (1981) ], supra. Because of the difference in function between the Juvenile Act and the Crimes Code, the proceedings of the two are not interchangeable. In Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981).

Id. at 428, 546 A.2d at 103.

In Matter of Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990), the issue of post-trial motions in juvenile cases was revisited by our Court en banc as it related to proceedings leading to claims of ineffectiveness of counsel. The majority voted 6 to 3 in favor of rejecting post-trial motions in juvenile proceedings and, therefore, the statement and rationale of Clay, supra, is controlling.

Here, the procedural anomalies occurred first when appellant filed a motion for recusal after the disposition hearing. This motion was untimely in that further motions for recusal are not viable after the disposition Order has been entered. See Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 222, 489 A.2d 1291, 1300 (1985) ("[o]nce the trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be...