Commonwealth v. Greiner , 236 Pa. Super. 289 ( 1975 )

Opinion by

Price, J.,

On June 21, 1974, appellant, David Wayne Greiner, was tried before a jury and convicted of criminal conspiracy,¹ burglary,² attempted kidnapping,³ aggravated assault,⁴ and attempted murder.⁵ His motions for new trial and in arrest of judgment were subsequently refused, and it is from the denial that appellant has appealed.

The testimony adduced at trial revealed that in the early morning of July 26, 1973, the Lancaster County Police Department received a report of a stabbing on New Garden Avenue in Lancaster. Officer Armentrout was sent to investigate. When he arrived at the scene, he saw the victim, Robert Groff, lying in the doorway of 60 New Garden Avenue. Mr. Groff was bleeding from numerous stab wounds, later learned to number fifteen, many of which were at or near vital parts of his body. Around the victim’s arm was one shackle of a set of handcuffs, and a rope was on the ground near his neck.

An ambulance was summoned. While the rescue team administered aid to Mr. Groff, he told Officer Armentrout that “ [t] hree boys came into my house. They stabbed me. I don’t know why. They were looking for Sandy [the victim’s nineteen-year-old son].” (NT 12)

At approximately 1:30 a.m., that morning, Detective Simms was assigned to the case. While the detective waited for his partner to arrive, three boys walked into the lobby of the police station. One of the boys, Edward William Trees,⁶ told Simms that, “[w]e want to turn ourselves in. ... I cut that man.” Simms warned the boys to remain silent until they had been apprised of their constitutional rights. He then ascertained that appellant was a juvenile, and called Youth Officer Arno Schoch to handle his case.

Schoch informed appellant of his Miranda rights and assured himself that appellant (who was fifteen years of age and an honor student in high school) understood their meaning. Appellant then made a lengthy statement which disclosed his involvement in the stabbing of Mr. Groff. The substance of his statement was that early in July, he had been approached by his brother and Edward Trees, who wanted to kidnap Sandy Groff, the victim’s son. After discussing several methods of accomplishing their goal, the boys decided to go directly to the Groff home at the end of July. Upon their arrival, they located an open door which they entered. Appellant found a door which he thought would lead to Sandy’s bedroom, entered the room and shook the person in the bed. When the man sat up, appellant realized that he was Sandy’s father.

Appellant’s statement further indicated that after a time, Edward Trees entered the room carrying a gun.⁷ He told Mr. Groff to lay on his stomach. When the victim complied, appellant removed handcuffs from his pocket, put them on Mr. Groff’s wrists, and led him through the kitchen and to the driveway. A discussion took place about the amount of money it would take for the boys to release Mr. Groff. The victim stated that he had $5,000 at his place of business, but the key to the building was in the house. At this time, appellant placed medical tape over the victim’s mouth “to keep him quiet.” He was then led back to the house by a rope which had been tied around his neck, and which appellant was holding. Before he could enter, however, Edward Trees struck Mr. Groff’s head with a lug wrench three or four times and stabbed him in the stomach area several times.⁸ Groff fell down, and the boys fled. After stopping at Trees’ home for money, the boys drove to the Harrisburg Pike, entered Route 30 and went east. They drove around the by-pass for about 10 minutes, then decided to turn themselves in to the Lancaster Police Department, where the statement was made.

Appellant then accompanied Detective Schoch and Police Cadet Wilson on a search for the weapons used in the crime. They found the knife sheath which appellant had held and the gloves which he had thrown from the car after the crime, but could not locate the pellet gun which Trees had held. The knife was located at a later time.

Appellant was subsequently committed to Barnes Hall. On August 6, 1973, the District Attorney petitioned the Juvenile Court to transfer the case to the Criminal Division, pursuant to §50-325 of the Juvenile Act,⁹ for prosecution of the offenses charged. Following a hearing on the petition, the lower court transferred appellant to the Criminal Division, where he was later tried and convicted by a jury. By objections made throughout the proceedings, appellant has contended that the transfer was improper. He now seeks to have the transfer set aside and the case remanded to the Juvenile Court.

The standards which guide a judge in making his determination to transfer a juvenile to the criminal court for trial are set forth in the Juvenile Act at §50-325, supra. That section provides in relevant part:

“(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. . .

It is noteworthy that §50-325 was adopted several years after Kent v. United States, 383 U.S. 541 (1966), the leading case espousing juvenile rights. Kent involved a transfer proceeding which the United States Supreme Court held to be violative of the child’s rights to due process of law. The Court found that a hearing must be held before a transfer is permitted, at which the child is afforded counsel. Following the hearing, the judge must detail the reasons for his decisions. The 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 necessarily 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.

In the instant case, the requirement of Kent, supra, and of the Juvenile Act have been met. The lower court conducted a full hearing, at which the Commonwealth introduced testimony regarding the nature of the alleged crimes. The Commonwealth also called a probation officer who had investigated appellant’s background. The witness stated that in his opinion, appellant was “in need of some firm form of rehabilitation.” (NT Transfer Hearing, 35). However, he also indicated his belief that the boy could be better rehabilitated through the juvenile system than in an incarcerated population composed only of adults. He further testified that a correctional facility such as Camp Hill, which currently houses both juvenile and adult offenders, would provide adequate guidance and rehabilitation for appellant. Of course, the weight to be accorded this testimony was for the court below to assess. Commonwealth v. Porter, 229 Pa. Superior Ct. 314, 323 A.2d 128 (1974).

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 interests 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.¹⁰ 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.

The recent case of Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975), supports our conclusion that the lower court properly certified appellant to criminal court.

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. Fouls, 198 Pa. Superior Ct. 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. In re Garrett’s Estate, 335 Pa. 287, 6 A.2d 858 (1939).

In view of the lengthy pre-transfer hearing and the lower court’s attention to the suggestions presented by §50-325 of the Juvenile Act, we believe the transfer was properly ordered. We can find no abuse of discretion.

Appellant next contends that he was tried and convicted of charges which had not been transferred to the Criminal Division. This contention is clearly without merit, for the transfer order stated:

“Based on the foregoing findings, the Court transfers David Wayne Greiner to the Criminal Division of the Court of Common Pleas of Lancaster County for prosecution of the offenses alleged to have been committed by him.” (emphasis added)

All of the charges against appellant were included in the petition which requested his transfer, and all were transferred by the court’s order.

Finally, appellant asserts that his preliminary hearing was held in violation of the Pennsylvania Rules of Criminal Procedure. The docket entry of August 22, 1973, states that defense counsel “waived the 3 day requirement [of Pa. R. Crim. P. 140 (f) (1)] and reading of the complaints.” Having waived the requirements of the Rule, appellant cannot now contest the validity of the procedure employed.

Judgment affirmed.

1 . Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §903).

2 . Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §3502).

3 . Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §2901).

4 . Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §2702).

5 . Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 (18 Pa.C.S. §2502).

6 . The youths were later identified as appellant, appellant’s brother and Edward William Trees. Appellant’s brother was separately tried and convicted of charges based on his participation in this crime. Trees has been committed to an institution for the criminally insane.

7 . Trial testimony indicated that appellant held a knife throughout this series of events.

8 . The victim testified that he thought appellant had stabbed him.

9 . Act of Dec. 6, 1972, P.L. 1464, No. 333, §28 (11 P.S. §50-325).

10 . Following liis conviction after trial in the Criminal Division, appellant was incarcerated at Camp Hill. As noted by the supreme court in Commonwealth v. Pyle, 462 Pa. 613, 624, 342 A.2d 101, 107 n. 16 (1975), adjudicated delinquents and convicted criminals receive the same treatment at Camp Hill.