Com. v. Fenner, V.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2015
• Docket: 2189 MDA 2014
• Status: Unpublished

Opinion

J-S49045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

VINCENT K. FENNER,

Appellant No. 2189 MDA 2014

Appeal from the Judgment of Sentence of November 24, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003036-2013

BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 11, 2015

Appellant, Vincent K. Fenner, appeals from the judgment of sentence

entered on November 24, 2014. We affirm.

The factual background of this case is as follows. On April 15, 2013,

Victor Castillo (“Castillo”) entered his vehicle which was parked outside of a

drycleaning business located in Cumru Township. Appellant, who was three

months shy of his 18th birthday, approached the vehicle, pointed a firearm at

Castillo, and demanded he exit the vehicle or Appellant would shoot him.

When Castillo exited the vehicle, Appellant shoved him to the ground and

pushed the barrel of the firearm into his neck. Appellant eventually entered

the driver’s seat of Castillo’s vehicle and fled.

The relevant procedural history of this case is as follows. On July 26,

2013, Appellant was charged via criminal information with four counts of J-S49045-15

robbery,1 robbery of a motor vehicle,2 theft by unlawful taking,3 receiving

stolen property,4 making terroristic threats,5 simple assault,6 possession of a

firearm by a minor,7 and unauthorized use of a motor vehicle.8 On

November 22, 2013, Appellant filed a decertification motion seeking transfer

of this case to juvenile court. On April 29, 2014, a decertification hearing

was held. On May 2, 2014, the decertification court denied Appellant’s

motion.9

On November 24, 2014, Appellant pled guilty to robbery of a motor

vehicle. The remaining ten charges were dismissed. Appellant was

1 18 Pa.C.S.A. § 3701. 2 18 Pa.C.S.A. § 3702. 3 18 Pa.C.S.A. § 3921. 4 18 Pa.C.S.A. § 3925. 5 18 Pa.C.S.A. § 2706. 6 18 Pa.C.S.A. § 2701. 7 18 Pa.C.S.A. § 6110.1. 8 18 Pa.C.S.A. § 3928. 9 Although the order is dated April 29, 2014, it was not docketed until May 2, 2014.

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immediately sentenced to 4½ to 15 years’ imprisonment. This timely appeal

followed.10

Appellant presents one issue for our review:

Whether the decertification court abused its discretion in denying [Appellant’s] pre-trial [motion] to [d]ecertify this matter and transfer the case to juvenile court?

Appellant’s Brief at 5.

In his only issue on appeal, Appellant contends the decertification

court erred by not decertifying this case and transferring it to juvenile

court.11 “This Court will not overturn a decision to grant or deny

decertification absent a gross abuse of discretion.” Commonwealth v.

Thomas, 67 A.3d 838, 843 (Pa. Super. 2013), appeal denied, 89 A.3d 661

(Pa. 2014) (citation omitted). “An 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 of

10 On February 4, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On February 25, 2015, Appellant filed his concise statement. On March 2, 2015, the trial court issued its Rule 1925(a) opinion. Appellant’s lone issue on appeal was included in his concise statement. 11 “A plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses.” Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (internal quotation marks and citation omitted). Denial of a decertification motion, however, presents a jurisdictional issue. See Commonwealth v. Johnson, 669 A.2d 315, 320 (Pa. 1995), citing Commonwealth v. Leatherbury, 568 A.2d 1313, 1315 (Pa. Super. 1990).

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record.” J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (internal

alteration and citation omitted).

In this case, Appellant was charged as an adult because robbery and

robbery of a motor vehicle are excluded from the definition of a delinquent

act when committed by an individual at least 15 years of age who possesses

a deadly weapon. 42 Pa.C.S.A. § 6302(2)(ii)(D-E). The decertification

statute provides that:

In determining whether to transfer a case . . . the child shall be required to establish by a preponderance of the evidence that the transfer will serve the public interest. In determining whether the child has so established that the transfer will serve the public interest, the court shall consider the factors contained in section 6355(a)(4)(iii).

42 Pa.C.S.A. § 6322(a).

Section 6355(a)(4)(iii) mandates that the decertification court consider

the following factors when making a decertification decision:

(A) the impact of the offense on the victim or victims;

(B) the impact of the offense on the community;

(C) the threat to the safety of the public or any individual posed by the child;

(D) the nature and circumstances of the offense allegedly committed by the child;

(E) the degree of the child’s culpability;

(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and

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(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:

(I) age;

(II) mental capacity;

(III) maturity;

(IV) the degree of criminal sophistication exhibited by the child;

(V) previous records, if any;

(VI) 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;

(VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;

(VIII) probation or institutional reports, if any; [and]

(IX) any other relevant factors[.]

42 Pa.C.S.A. § 6355(a)(4)(iii). “While the Juvenile Act requires that a

decertification court consider all of these factors, it is silent as to the weight

assessed to each by the court.” Commonwealth v. Brown, 26 A.3d 485,

492 (Pa. Super. 2011) (citation omitted). Thus, a decertification court is

free to weigh the factors as it deems appropriate. Commonwealth v.

Sanders, 814 A.2d 1248, 1251 (Pa. Super. 2003), appeal denied, 827 A.3d

430 (Pa. 2003) (citation omitted). Furthermore, although the decertification

“court must consider all the fact[ors] set forth in [section] 6355 of the

Juvenile Act, [] it need not address, seriatim, the applicability and

importance of each factor and fact in reaching its final determination.”

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Commonwealth v. Ruffin, 10 A.3d 336, 339 (Pa. Super. 2010) (citation

omitted).

In this case, the decertification court carefully considered the six

statutory factors and determined that Appellant failed to prove that transfer

to juvenile court served the public interest. As to the first factor, the

decertification court considered the crime’s impact on Castillo. It found the

impact on Castillo “to be extraordinarily serious.” Order, 5/2/14, at 1.

Therefore, the decertification court gave the first factor more weight than

the other five factors. This decision was supported by the record. At the

decertification hearing, Castillo testified that he had worked at the

drycleaning business for 14 years. N.T., 4/29/14, at 70. After this incident,

however, he quit his job and moved out of Reading. Id. at 70, 74. Castillo

also testified that he saw a therapist because of recurring nightmares caused

by this incident. Id. at 73-75. Castillo stated “sometimes I would prefer

that he had killed me that night because he killed most of [] my life.” Id. at

78.

At the decertification hearing, Appellant called Dr. Larry A. Rotenberg,

an expert witness in the field of psychiatry. Dr. Rotenberg examined

Appellant and prepared an expert report relating to the decertification issue.

At the decertification hearing, Dr. Rotenberg testified that “[t]he effect on

[Castillo], again, could not be more serious. [Castillo] was essentially

carjacked. His vehicle was taken away. He was threatened literally with his

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life. He was threatened with a gun.” Id. at 10. Therefore, even Appellant’s

own expert’s testimony supported the decertification court’s conclusion that

Appellant’s actions had a significant impact on the victim.

As to the second factor, the decertification court considered the impact

of Appellant’s crime on the community. Castillo testified that his whole

family was uprooted and no longer enjoyed the same lifestyle as a result of

this incident. Id. at 72-76. Detective Christopher Lis also testified at the

decertification hearing. He testified that “[t]his incident very clearly had an

impact on the community. There is no doubt about it that people were

scared. It put people in fear because . . . this is not a crime you see occur in

Cumru Township[.]” Id. at 66. Dr. Rotenberg concurred with Detective Lis

on the community impact. Dr. Rotenberg testified that “the effect on the

community of [Appellant’s] continuing and progressive acting out is

exceedingly serious.” Id. at 10. Thus, Dr. Rotenberg’s testimony supported

the conclusion that the second factor deserved substantial weight.

As to the third factor, the decertification court considered the threat to

the public posed by Appellant. Specifically, the decertification court

considered Appellant’s past juvenile record. Commonwealth’s Exhibit 2. The

juvenile record showed that Appellant’s crimes had become more violent

over time. See id. In addition, Dr. Rotenberg stated that Appellant’s crimes

showed an escalation in the nature and scope of the threat he posed to the

community. Defense Exhibit 1, at 8.

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As to the fourth factor, the decertification court considered the nature

and circumstances of this incident. In addition to the testimony from

Detective Lis and Castillo, the decertification court considered the police

report relating to the incident. Commonwealth’s Exhibit 1. As evidenced by

the factual recitation above, this was not an ordinary robbery. Appellant

pulled Castillo out of his vehicle and pushed him to the ground. Appellant

also repeatedly threated to kill Castillo and shoved the barrel of the firearm

into Castillo’s neck on several occasions. In his expert report, Dr. Rotenberg

stated that the nature and circumstances of the offense “were particularly

onerous and dangerous.” Defense Exhibit 1, at 8.

As to the fifth factor, the decertification court considered Appellant’s

culpability for this crime. Dr. Rotenberg testified that Appellant’s culpability

for the instant offense was lessened because he was aided and abetted by

an adult female. Specifically, Dr. Rotenberg testified that “while this in no

way excuses his crime . . . it diminishes, to some extent, the extreme

gravity of the situation.” N.T., 4/29/14, at 13. Furthermore, Dr. Rotenberg

testified that Appellant’s culpability was lesser because he had taken Ecstasy

and Xanax on the day of the incident. Id. at 15.

As to the final factor, the decertification court considered whether

Appellant is amenable to treatment. First, it considered the fact that

Appellant was only three months shy of his 18th birthday at the time of the

offense. Dr. Rotenberg stated that Appellant had a less than average mental

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capacity and level of maturity. Defense Exhibit 1, at 8. Dr. Rotenberg also

stated that Appellant lacked criminal sophistication. Id. As noted above,

the decertification court reviewed Appellant’s prior juvenile record and the

nature and extent of his prior delinquent acts. Commonwealth’s Exhibit 2.

It also reviewed the failure of the juvenile court to rehabilitate Appellant. It

considered Dr. Rotenberg’s testimony that this failure was caused by

Appellant not being placed in a single location for an extended time period.

Finally, the decertification court considered Dr. Rotenberg’s testimony as to

whether Appellant could be rehabilitated prior to his 21st birthday.

Dr. Rotenberg concluded that decertification was in the public’s

interest. Defense Exhibit 1, at 8-9. Taken as a whole, however, Dr.

Rotenberg’s testimony and expert report expressed his view that a small

chance of rehabilitation in the juvenile court system was better than no

chance of rehabilitation in the adult criminal system. Thus, Dr. Rotenberg’s

testimony was not a strong endorsement of decertification. Instead, Dr.

Rotenberg testified that Appellant “would be at the bottom 10 percent of the

people that I would recommend for being in the juvenile system[.]” N.T.,

4/29/14, at 27. Thus, even Dr. Rotenberg testified that this was a close call.

The decertification court’s decision against decertification, therefore, cannot

be considered an abuse of discretion.

Appellant argues that the decertification court placed undue

consideration on the first and second factors. This argument is without

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merit. First, Appellant’s argument is based on the assumption that the

decertification court did not meaningfully consider the other factors. The

record reflects, however, that the decertification court carefully considered

the other four factors. The two factors Appellant relies upon, the fifth and

sixth factors, were weighed less based upon Dr. Rotenberg’s own testimony.

Dr. Rotenberg admitted that there was little chance of rehabilitation and that

Appellant was, to a significant degree, culpable for the offense. The

decertification court carefully considered Dr. Rotenberg’s testimony when

deciding how to weigh those factors. Furthermore, as noted above, section

6355(a) does not set forth the weight to be afforded to each factor. Brown,

26 A.3d 492. Instead, the decertification court is free to weigh the factors

as it deems appropriate. Sanders, 814 A.2d at 1251. The decertification

court’s weighing of the factors was not arbitrary or capricious. Therefore,

we may not overturn the decertification court’s decision on this basis.

Finally, Appellant tries to differentiate this case from several cases in

which this Court affirmed the denial of decertification. Notably, however,

Appellant does not cite to any case in which this Court overturned denial of

decertification in factual circumstances similar to those in the case sub

judice. We decline Appellant’s invitation to ignore our standard of review

and conduct a de novo review of the record.

The General Assembly has determined that individuals at least 15

years of age, who possess a deadly weapon and commit robbery and/or

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robbery of a motor vehicle, should most often be tried as an adult. In this

case, the decertification court found that Appellant failed to show that

transfer to juvenile court would be in the public’s interest. The

decertification court properly weighed all of the statutory factors when

reaching this decision and its decisions is supported by ample evidence.

Accordingly, we conclude that the decertification court did not abuse its

discretion in denying Appellant’s decertification motion requesting transfer of

this case to juvenile court.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2015

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