Commonwealth v. Bey

375 A.2d 1304, 249 Pa. Super. 185, 1977 Pa. Super. LEXIS 1977

• Court: Superior Court of Pennsylvania
• Decided: June 29, 1977
• Docket: 42
• Status: Published

Opinions

JACOBS, Judge:

The facts in this case are uncontroverted. On June 10, 1974, at approximately 5:30 p. m., a twelve year old girl and her 10 year old male playmate were playing in a vacant lot in Philadelphia when they were accosted by a young black male who threatened the children and ordered the little girl to remove her undergarments. He thereupon committed various sexual acts — vaginal, rectal and oral, upon the girl’s person. The children reported the crime to the Philadelphia police and gave the investigating officers a detailed description of the assailant.¹ At 10:00 p. m. on the same date Gang Control Officers of the Philadelphia Juvenile Aid Division arrested the appellant, then sixteen years of age, and took him to the 35th police district. At approximately 2:00 a. m. on June 11, 1974, while still at the 35th police district, the appellant was placed in a lineup. The appellant was represented at the lineup procedure by an attorney from the Philadelphia Defender Association who rearranged the lineup and insisted that the lineup participants be seated behind a table so that any height differentials would be eliminated. Appellant was positively identified by the two young children as the person who had accosted the complainant a few hours earlier. Appellant was subsequently transferred to the 14th police district on the morning of June 11, 1974, and later taken to the Youth Study Center in Philadelphia.² At 2:30 p. m. on June 12, 1974, 401/2 hours after his arrest, appellant was given a detention hearing before the Honorable Jerome A. O’Neill sitting as a committing magistrate pursuant to Section 15 of the Juvenile Act.³ A preliminary hearing was conducted on Wednesday, July 3rd, 1974, which, in addition, was used as a certification hearing in order to determine whether the appellant should stand trial as an adult. This hearing was continued until July 9, 1974, at which time the appellant was certified by a judge of the Court of Common Pleas, Family Division, to stand trial as an adult.⁴ After indictments were returned by the Grand Jury of Philadelphia County, appellant filed motions to quash the indictments and to suppress identification, which were denied. Appellant was found guilty by a jury of rape⁵ and involuntary deviate sexual intercourse.⁶ After timely post-trial motions were denied the appellant was sentenced to 5-20 years in a State Correctional Institution on each bill, sentences to run concurrent. This appeal followed.

Appellant raises several contentions before this court. He alleges that the trial court (1) erred in certifying him to the common pleas court to stand trial as an adult; (2) erred in not suppressing the identification of the appellant because the post-arrest pre-trial lineup was unduly suggestive;⁷ (3) erred in refusing to give two charges that he requested; and (4) erroneously dismissed the motion to quash the indictment because he was not given a preliminary arraignment without unnecessary delay pursuant to Pa.R.Crim.P. 130. We shall deal with each of these contentions in order.

I

Appellant’s initial contention is that the trial judge of the court of common pleas, Family Division erred in certifying him to stand trial as an adult pursuant to Section 28 of The Juvenile Act.⁸ It is axiomatic that before this court will set aside a transfer, the appellant must show a gross abuse of the broad discretion afforded the hearing judge. Commonwealth v. Greiner, 236 Pa.Super. 289, 297, 344 A.2d 915, 919 (1975) citing Commonwealth v. Pouls, 198 Pa.Super. 595, 182 A.2d 261 (1962). Such abuse is not merely an error of judgment, but the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment based upon partiality, prejudice or ill will. Commonwealth v. Greiner, supra. There has been no suggestion, nor would the record support any allegation, that the family court judge acted in a manner that could be considered partial, prejudicial or vindictive. Appellant’s contention is that his certification was improper in that the court failed to specifically report its reasons for the certification, and, a fortiori, the lower court failed to illustrate that it had made a full investigation of the matter and had given the certification question careful consideration. Appellant contends, therefore, that a meaningful review by this Court is not possible. Kent v. U. S., 383 U.S. 541, 86 S.Ct. , 16 L.Ed.2d 84 (1966); see Freeman Appeal, 212 Pa.Super. 422, 242 A.2d 903 (1968) (under now repealed Juvenile Court Law). We agree.

The constitutional mandates of Kent v. U. S., supra, the landmark decision in this area, was made applicable to the states in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); U. S. ex rel. Turner v. Rundle, 438 F.2d 839 (3rd Cir. 1971); Commonwealth v. Pyle, 462 Pa. 613 n. 8, 342 A.2d 101, 105 n. 8 (1975); Freeman Appeal, supra. The Kent Court stated:

“[W]e hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should include conventional findings of fact, but the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court, and it must set forth the basis for the order with sufficient specificity to permit meaningful review.” 383 U.S. at 561, 86 S.Ct. at 1057.

It is noteworthy that § 28 of the Juvenile Act, which sets forth the standards for a transfer of a juvenile to criminal court for trial in our Commonwealth, was adopted several years after the Kent decision. That section provides in relevant parts:

“(a) After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this State, the court before hearing the petition on its merits may rule that this act is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the trial or criminal division or to a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if:

“(1) The child was fourteen or more years of age at the time of the alleged conduct; and

“(2) A hearing on whether the transfer should be made is held in conformity with this act; and

“(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing; and

“(4) The court finds that there is a prima facie case that the child committed the delinquent act alleged, and the court finds that there are reasonable grounds to believe that: (i) the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, in determining this the court may consider age, mental capacity, maturity, previous record and probation or institutional reports; and (ii) the child is not committable to an institution for the mentally retarded or mentally ill, and (iii) the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult.”

This section must therefore be read within the framework of the constitutional duties prescribed by Kent when assessing the validity of appellant’s assertions. Our court was recently faced with a situation similar to the case at bar in Commonwealth v. Greiner, 236 Pa.Super. 289, 344 A.2d 915 (1975). In that case Greiner was 15 years old when arrested for and convicted of criminal conspiracy, burglary, attempted kidnapping, aggravated assault, and attempted murder. A hearing pursuant to Section 28 was held in which the Commonwealth introduced testimony regarding the nature of the alleged crimes. A probation officer testified that after an investigation into Greiner’s background it was his opinion that he was “in need of some firm form of rehabilitation and that Greiner could better be served in the juvenile system.” Despite this testimony the lower court ordered that Greiner be certified to stand trial as an adult.⁹ We affirmed having found no abuse of discretion in view of the lengthy pre-transfer hearing and the lower court’s attention to the requirements presented by Section 28.

In the instant case, however, the guidelines established by Kent and Greiner, even under a most liberal reading, were not complied with. Of significant importance on this point is the absence of a statement by the juvenile court judge as to the reasons for certification. Such a statement is required by the express language of Kent, and is required by our decision in Freeman Appeal, supra.¹⁰ We are not unmindful that the Kent court did not require a formal statement or that it include conventional findings of fact, 383 U.S. at 561, 86 S.Ct. 1045, but it is clear from a reading of Kent that some statement of sufficient specificity must be supplied in order that a meaningful review can be had. None appears in the record of this case. At the first hearing¹¹ on July 3, 1974 the only result was that a prima facie case was established pursuant to Section 28. The issue of certification was discussed and decided at the second hearing on July 9, 1974. At that hearing, no testimony was received and after only vague reference to psychologic and psychiatric reports which do not appear in the record, and a discussion of appellant’s past record the juvenile court judge stated:

“THE COURT: ... I am going to certify the case, Mr. Silverstein. I think, as I see it, the Juvenile Court system is not an adequate setup to handle this defendant and his behavior, and I am going to certify him for that reason.

“All right. Certification request is granted.”

Such a statement does not satisfy the due process requirements of Kent, Greiner and Freeman. Absent an opinion or statement setting forth the reasons for certification, it is impossible for this court to afford any type of meaningful review of the issues raised by the appellant. There is no indication in the record as to whether the court considered the other criteria expressed in the statute: the child’s age, mental capacity and maturity. Section 28(a)(4)(i). We cannot assume that it did. Nor will a generalized reading by the prosecuting attorney of the words of Section 28, and a statement that in his opinion the statute has been complied with, satisfy the constitutional requirements established by the Supreme Court. Simply stated, no specific reasons were advanced by the lower court for its conclusion that the child is “not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities.” Thus an evaluation of the propriety of the certification is precluded.

The case must therefore be remanded for a new certification hearing to be held in conformity with the requirements of this opinion.

II

Despite our remand for a new certification hearing it is still necessary to decide the allegations of trial error raised by appellant attacking his conviction, for if it is determined on remand that appellant’s certification was proper, and no trial error is found, then appellant’s conviction must be affirmed.

Appellant contends that the trial court erred when it refused to charge the jury as requested by his counsel. It is well-settled that the trial court is not required to accept the language of requested instructions submitted by counsel, but is free to select its own form of expression, so long as the issue is adequately, accurately and clearly presented to the jury for its consideration. Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975); Commonwealth v. Rose, 449 Pa. 608, 297 A.2d 122 (1972). The two charges rejected by the trial court concerned an alibi defense and identification. Our examination of the record discloses that the court gave a complete and careful statement regarding alibi and also properly charged the jury on identification. Considering the charges as a whole, Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975); Commonwealth v. Walker, 459 Pa. 12, 326 A.2d 311 (1974); Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); and it is the general effect of the charge tliat controls, Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974), it is apparent that the court clearly and adequately covered the laws of alibi and identification and therefore was not required to give the appellant’s requested points verbatim.

Ill

Appellant’s final contention, however, raises a serious question and requires a close analysis by this court. In essence, appellant contends that he was subject to Pa.R.Crim.P. 130 until his appearance before the family court judge, sitting as a committing magistrate, at 2:30 p. m. on June 12, 1974. Rule 130 provides

“When a defendant has been arrested without a warrant in a court case, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him and he shall be given an immediate preliminary arraignment.”

Appellant thus argues that the trial court erred in ruling that a preliminary arraignment was not required since the appellant was at all times processed in strict compliance with the Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, 11 P.S. § 50-101 et seq. (Supp. 1976-77). The Commonwealth contends, however, that the trial judge was correct in his ruling and further argues to this court that juvenile court proceedings are excepted from the general application of the Rules of Criminal Procedure and that Section 15 of the Juvenile Act¹² is the sole provision controlling the arraignment-type procedure in juvenile cases. The Commonwealth relies on Pa.R.Crim.P. 1(a) which states

“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 proceedings.” (Emphasis added.)

At first glance, the Commonwealth’s argument seems to be dispositive of this issue. However, upon closer examination it becomes clear that this position must be rejected. To reach the conclusion advanced by the Commonwealth it would be necessary for this court to hold that the arrest and subsequent detention of the appellant at the police stations, and the intervening lineup, were “juvenile proceedings” within the Rules of Criminal Procedure and The Juvenile Act. This is clearly not the case and we refuse to so hold.

Our Supreme Court has held in In re Geiger, 454 Pa. 51, 309 A.2d 559 (1973) that the mere act of arresting of a juvenile is not by itself the initiation of “juvenile proceedings.” In that case the Supreme Court was faced with a situation similar to that of the case on hand. Geiger, then 15 years of age, was arrested for two rapes in Philadelphia at 6:30 p. m. on May 28, 1970, by a detective who matched his description to that of a composite drawing prepared from descriptions obtained from the victims. He was taken into custody at the Central Detective Office and was thereupon subjected to a lineup in which he was not identified and a lengthy 24 hour interrogation in which he eventually made a written confession. The Supreme Court reversed our per curiam affirmance¹³ and suppressed the confession under the rationale of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973). The court held that the confession was obtained only after unnecessary delay and without timely presentation of appellant before a magistrate and during a period manifestly unrelated to the completion of administrative processing or unrelated to a brief exculpatory investigation. 454 Pa. at 57-8, 309 A.2d at 562-63.

While it should be noted that the Geiger court was faced with a construction of § 246 of the now-repealed Juvenile Court Law,¹⁴ Act of June 2, 1933, P.L. 1433,11 P.S. § 243 et seq., the replacement of this legislation with the new Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, 11 P.S. § 50-101 et seq. (Supp. 1976-77) does not warrant a different result. Section 6 of the Juvenile Act¹⁵ provides in relevant part:

“A proceeding under this act may be commenced:

“(1) By transfer of a case as provided in Section 7 (11 P.S. § 50-303);

“(2) By the court accepting jurisdiction as provided in Section 33 (11 P.S. § 50-330) or accepting supervision of a child as provided in Section 35 (11 P.S. § 50-332); or “(3) In other cases by the filing of a petition as provided in this act . . . ”

It is apparent from the record that none of the above legislatively prescribed methods of instituting juvenile proceedings was pursued by the law enforcement authorities prior to the appellant’s detention at the 35th police district. Absent the occurrence of one of these conditions, and in this case it would have been the filing of a petition, the conclusion is inescapable that the Juvenile Act did not become applicable until sometime after the appellant was transferred from the police stations at which he was held, and not until some time after the appellant had been placed in a lineup. And it necessarily follows that juvenile proceedings not having been commenced the Commonwealth and the appellant were at all times prior to the filing of a petition pursuant to the provisions of the Juvenile Act, subject to the Pennsylvania Rules of Criminal Procedure, and more specifically Rule 130. In re Geiger, supra 454 Pa. at 57, 309 A.2d at 563.

The Commonwealth argues that a contrary result is warranted since the appellant was at all times subsequent to his arrest in the custody of Juvenile Aid Division police officers. We find this argument confusing. If the Commonwealth is contending that the appellant was at all times segregated in a portion of the police station which is used solely for the detention of juveniles, then it must show, and it did not, that such a place is a detention or shelter care facility designated by the court. However, if the state is arguing that the juvenile was at all times in the police station in the custody of Juvenile Aid Division officers but detained with adults, then such a procedure is in contravention of the Juvenile Act.¹⁶ The Commonwealth has failed to show that the appellant was processed in accordance with the Juvenile Act and we therefore find this argument unpersuasive. Furthermore, our decision is consistent with Section 13 of the Juvenile Act¹⁷ which requires that

“(a) A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall

“(1) Notify the parent, guardian or other custodian of the child’s apprehension and his whereabouts;

“(2) Release the child to his parents, guardian or other custodian upon their promise to bring the child before the court when requested by the court, unless his detention or shelter care is warranted or required under Section 12; or

“(3) Bring the child before the court or deliver him to detention or shelter care facility designated by the court . Any temporary detention or questioning of the child necessary to comply with this subsection shall conform to procedures and conditions prescribed by this act and rules of court."

Thus our legislature has, through the inclusion of this section in. the Juvenile Act, incorporated and amplified the requirement that a person arrested without a warrant be taken without unnecessary delay before a magistrate. See In re Geiger, supra 454 Pa. at 56 n. 8, 309 A.2d at 563 n. 8. The Act is specific. Section 11(2) provides that a child may be taken into custody pursuant to the laws of arrest.¹⁸ The appellant therefore upon his arrest at 10:00 p. m. on June 10, 1974, was in “custody” within the meaning of the Juvenile Act. Consequently, before he was taken elsewhere, allowing for a period in which the authorities could administratively process the juvenile suspect, he should have either been released in the custody of his parents, guardian or other custodian or brought before a court or delivered to a detention or shelter care center designated by the court. In view of the serious charges for which the appellant was arrested it would have been quite impractical for the police to have released the appellant. However, this does not alter the fact that his lengthy detention at the 35th and 14th police districts was not proven to be in conformity with the mandatory provisions of Section 13.

Our decision today is a narrow one. We are not requiring that all juveniles who are arrested in Pennsylvania be given a preliminary arraignment. What we do hold is that after a juvenile is taken into custody, strict compliance with the provisions of the Juvenile Act by the law enforcement authorities will obviate the need for any preliminary arraignment. The Act, through its provisions adequately safeguards the rights of accused juveniles under the laws of our Commonwealth. Therefore, if a juvenile is arrested for a crime, the severity of which makes it impractical that he immediately be released in the custody of his parents, the delivery by the police of the juvenile to a court or detention or shelter care center designated by the court pursuant to Section 13 and the simultaneous filing of a petition alleging the child to be delinquent pursuant to Section 17 will effectively commence proceedings under Section 6 of the Juvenile Act and thereby preclude the applicability of Pa.R.Crim.P. 130.¹⁹ The child can then be detained pursuant to Section 12²⁰ if the case warrants recourse to this section and it is from this moment that the state has 72 hours in which to provide the alleged delinquent juvenile an informal detention hearing pursuant to Section 15.²¹

However, having found that the appellant’s rights were violated because of the Commonwealth’s non-compliance with Rule of Criminal Procedure 130, our inquiry must now turn to the appropriate remedy for this violation. Appellant urges that the proper remedy in this case is the quashing of his indictment. Such a remedy is not authorized under Rule 130 and we have found no case supporting appellant’s position. We reaffirm that the proper remedy is the suppression of prejudicial evidence obtained as a reasonable result of the unnecessary delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); accord Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); Commonwealth v. Jones, 449 Pa. 619, 294 A.2d 889 (1972). Our courts have developed a three part test to be used when inquiring into an alleged violation of Rule 130. The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must be reasonably related to the delay. Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419, 420 (1974). Cases cited supra.

Assuming arguendo that the facts in this case satisfy this three-pronged test,²² it should then be noted that illegal pre-trial lineups that are obtained as a result of an unnecessary delay do not automatically constitute a basis for reversal. An in-court identification following an illegal out-of-court identification is admissible if considering the totality of the circumstances the in-court identification had an independent origin sufficiently distinguishable to be purged of the primary taint. Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Wortham, 235 Pa.Super. 25, 342 A.2d 759 (1975); Commonwealth v. Jenkins, 232 Pa.Super. 523, 335 A.2d 463 (1975); Commonwealth v. Tate, 229 Pa.Super. 202, 323 A.2d 188 (1974); Commonwealth v. Burton, 452 Pa. 521, 307 A.2d 277 (1973); Commonwealth v. Baker, 220 Pa.Super. 86, 283 A.2d 716 (1971). In discerning whether or not there is a sufficient independent origin to permit an in-court identification several facts are taken into consideration, including the opportunity the witness had to observe the accused at the scene and the conditions under which the observation was made. Commonwealth v. Wortham, 235 Pa.Super. 25, 29, 342 A.2d 759, 762 (1975); Commonwealth v. Tate, supra; Commonwealth v. Burton, supra.

In the instant case both the victim and her playmate testified that at the time of the incident it was a bright afternoon and that for the majority of the time they were no more than one or two feet away from the appellant. The playmate of the victim testified that he watched the appellant’s face almost the whole time for about 8-10 minutes. The victim herself testified that she was facing the accused for a number of minutes out of the 8-10 and watched his face the entire time.

In light of the ample opportunity afforded both these children to clearly observe the appellant at the scene of the crime, coupled with their unwavering certainty as to the correctness of their identification and their detailed description of the appellant, we hold that a sufficient foundation existed for the in-court identification and as such, the introduction of evidence relating to the allegedly illegal pre-trial identification was harmless error beyond a reasonable doubt.

The case is therefore remanded for a new certification hearing to be held in conformity with the requirements of Part I of this opinion. The evidence introduced at this hearing is to be limited solely to the evidence introduced at the initial certification hearing. If it is then determined that certification was improper then the indictments must be dismissed and appellant returned to the juvenile court. If it is determined that certification was proper then appellant’s sentence is affirmed.

It is so ordered.

CERCONE, J., files a concurring opinion. HOFFMAN and PRICE, JJ., file concurring and dissenting opinions.

1 . The description given to the police by the two children was quite detailed. The appellant argues that the fact that the children did not refer to the appellant’s crooked teeth for the first time until the lineup some 8 hours later renders their initial description inadequate. In light of the children’s positive, unwavering description in all other respects this point is not determinative of the issues before this court. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954); Commonwealth v. Donald, 227 Pa.Super. 407, 323 A.2d 67 (1974).

2 . The record is not clear concerning the exact time each transfer took place.

3 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 15, 11 P.S. § 50-312 (Supp. 1976-77).

4 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 28, 11 P.S. § 50-325 (Supp. 1976-77).

5 . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3121 (1973).

6 . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3123 (1973).

7 . This contention is without merit. The composition of the lineup was not suggestive in any manner and the police made every effort to comply with all of the objections raised by the public defender who represented the appellant at the lineup. As the record indicates all the participants were black males of similar physique. To neutralize height differentials all of the participants were seated behind a table. Appellant was neither the tallest nor the shortest, the thinnest nor the heaviest. Furthermore, appellant was dressed in entirely different clothing than that described by the victim and her playmate. Finally, the public defender was given the option to place the participants as she saw fit and having done so, she agreed that the lineup was fair and non-suggestive.

8 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 28, 11 P.S. § 50-325 (Supp. 1976-77).

9 . In Greiner at 296, 344 A.2d at 919, we noted that:

“Following the hearing, the lower court issued an order granting the transfer and setting forth its findings. The judge found that appellant was fifteen years of age at the time of the alleged offenses, that the notice required by statute had been given, that appellant was represented by counsel at the hearing, that the Commonwealth had established a prima facie case against appellant, and that appellant was not amenable to treatment as a mentally retarded or mentally ill person. The judge further found that appellant could be sentenced to a term of imprisonment of more than three years if convicted in criminal court; that the interest of the community would be best served by placing appellant under legal restraint or discipline; and that appellant was not amenable to the treatment, supervision or rehabilitation available through the juvenile court, except that provided at Camp Hill. In reaching this decision, the lower court also considered the brutality of the stabbing and striking of the victim and the serious nature of the charges against appellant and his co-conspirators.” (Emphasis added.)

10 . Our decision in Freeman Appeal was decided under the now repealed Juvenile Court Law, Act of June 7, 1933, P.L. 1433, 11 P.S. § 243 et seq., but remains current law insofar as it relates to our court’s analysis of Kent v. U. S., 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

11 . There were two hearings. The first hearing did not end in appellant’s certification because reports on the appellant were not then finished. Thus, a second hearing was held to determine certification.

12 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 15, 11 P.S. § 50-312 (Supp. 1976-77).

13 . In re Geiger, 221 Pa.Super. 111, 288 A.2d 911 (1972) (Per Curiam, with Hoffman, J., joined by Spaulding, J., dissenting).

14 . Section 246 of the Juvenile Court Law read:

Ҥ 246. Initiation of Proceedings.

“The powers of the court may be exercised—

“1. Upon the petition of any citizen, resident of the county, setting forth that (a) a child, giving his or her name, age, and residence, is neglected, dependent or delinquent, and is in need of care, guidance and control, (b) the names and residence of the parents, if any, or of his or her legal guardian if there be one, (c) the name and residence of the person or persons having control of the child, and (d) the name and residence of the nearest relative if no parent or guardian can be found.

“2. Upon commitment, by a magistrate, alderman or justice of the peace, of a child arrested for any indictable offense, other than murder, or for the violation of any other laws of this Commonwealth or the ordinance of any city, borough or township.

“3. There shall be no preliminary hearings in any cases affecting dependent, delinquent or neglected children under the age of eighteen years.”

15 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, 11 P.S. § 50-302 (Supp. 1976-77). (Purdon cites added.)

16 . Section 14 of the Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, 11 P.S. § 50-311, provides inter alia :

“(a)(4) Under no circumstances shall a child be detained, placed, or committed in any facility with adults . . unless there is no appropriate facility available .

“(b) The official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court immediately if a person who is or appears to be under the age of eighteen is received at the facility and shall bring him before the court upon request or deliver him to a detention or shelter care facility designated by the court.”

17 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 13, 11 P.S. § 50-310 (Supp. 1976-77).

18 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 11, 11 P.S. § 50-308 (Supp.1976-77).

19 . The Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 13, 11 P.S. § 50-310 (Supp.1976-77) allows for an administrative delay in subsection (a)(3) which provides in part — “Any temporary detention or questioning of the child necessary to comply with this subsection shall conform to the procedures and conditions prescribed by this Act and rules of court. (Emphasis added.)

20 . Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 12, 11 P.S. § 50-309 (Supp. 1976-77).

21 . - Juvenile Act, Dec. 6, 1972, P.L. 1464, No. 333, § 15, 11 P.S. § 50-312 (Supp. 1976-77).

The juvenile can be initially detained pursuant to Section 12 (11 P.S. § 50-309) if the investigation by the intake authority determines that the case warrants detention and it is from that point that the authorities have 72 hours in which to provide an informal detention hearing before a court or master in order to determine whether the detention of the juvenile is required. The Commonwealth then has two options: (1) it can hold a hearing on the merits of the petition within 10 days from the filing of the petition and dispose of the case within the framework of the Juvenile Act; or (2) certification can be sought pursuant to Section 28 (11 P.S. § 50-325) as was done in this case.

22 . It is not clear from the facts of this case whether there was a nexus between the delay and the challenged evidence since the pre-trial lineup occurred within the first four hours of the delay. See Commonwealth v. Corbett, 228 Pa.Super. 292, 323 A.2d 836 (1974).