Com. v. Fenner, V. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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