Com. v. Guyer, J.

J-S35021-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

J.G. : No. 1601 MDA 2023

Appeal from the Order Entered November 17, 2023

In the Court of Common Pleas of York County Criminal Division at No(s):

CP-67-CR-0000180-2023

BEFORE: PANELLA, P.J.E., MURRAY, J., and KING, J.

MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 23, 2024

The Commonwealth of Pennsylvania appeals from the order granting the

petition for decertification filed by J.G. (Defendant), and transferring his case

from criminal court to juvenile court pursuant to the Juvenile Act, 42 Pa.C.S.A.

§§ 6301-6375. Upon careful consideration, we affirm.

On November 1, 2022, when Defendant was 17 years and 4 months old,

he and a co-conspirator committed an armed robbery at Asian Yummy, a

restaurant located at 1500 N. George Street, York, Pennsylvania (the

restaurant). See N.T., 12/29/22, at 5-9; N.T., 11/16-17/23, at 12, 14-17.

Police subsequently apprehended Defendant and charged him, as an adult,

with one count each of robbery, conspiracy to commit robbery, terroristic

threats, theft by unlawful taking, receiving stolen property, simple assault,

J-S35021-24

recklessly endangering another person, and possession of a firearm as a

minor.1

On December 29, 2022, the decertification court conducted an “interest

of justice” evidentiary hearing. The Commonwealth presented testimony

from, inter alia, Detective Isaiah Emenheiser (Detective Emenheiser), of the

Northern York County Regional Police Department. Detective Emenheiser was

the lead investigator assigned to the robbery. N.T., 12/29/22, at 5. Detective

Emenheiser’s investigation established Defendant and his co-conspirator,

recorded by surveillance video at the restaurant, approached Lou Lou Han

(Ms. Han), who was near the cash register. Id. at 5-6. Defendant brandished

a handgun, pointed it at Ms. Han, and demanded money. Id. at 6-7. Ms. Han

gave Defendant cash from the cash register, and Defendant and his co-

conspirator fled. Id. at 8-9.

Detective Emenheiser’s investigation led him to believe that the

perpetrators may be associated with the George Street Program House

(Program House), a juvenile diversion program/residential facility located in

close proximity to the restaurant. Id. at 10. Detective Emenheiser showed

the surveillance video to a Program House staff member, who identified the

perpetrators as Defendant and his co-conspirator. Id. Detective Emenheiser

subsequently executed a search warrant of Defendant’s private bedroom

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118 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1), 2706(a)(1), 3921(a), 3925(a),

2701(a)(3), 2705, 6110.1(a).

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inside the Program House. Id. at 11-12. Police found clothing in Defendant’s

bedroom that matched the clothing worn by one of the perpetrators during

the robbery. Id. at 12-13.

At the conclusion of the interest of justice hearing, the decertification

court concluded, “as we sit here today, [D]efendant is a juvenile.” Id. at 60.

The court ordered Defendant’s transfer from the York County Prison to an

appropriate juvenile facility, as soon as a bed became available. See id. at

60-62; see also id. at 60 (decertification court stating, “a placement in the

community would be inappropriate at this time as it would pose some safety

risks to both [Defendant] and the public generally.”).

Defendant filed his petition for decertification2 on January 19, 2023,

asserting:

[Defendant] has had minimal prior contact with the juvenile

justice system in Pennsylvania, but he is not currently on juvenile

probation supervision. [Defendant] has, however, an extensive

history with the Lancaster County dependency court and remains

an adjudicated dependent youth. It is believed that based on his

age, mental capacity, maturity and criminal sophistication,

[Defendant] is amenable to treatment, rehabilitation, and

supervision under the Juvenile Act prior to the expiration of the

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2 Pursuant to Section 6322 of the Juvenile Act, when a juvenile has committed

any of the offenses enumerated under paragraph (2)(ii) or (iii) of the definition

of “delinquent act” set forth in 42 Pa.C.S.A. § 6302, the criminal division of

the Court of Common Pleas is vested with jurisdiction. 42 Pa.C.S.A. §

6322(a); see also id. § 6355(e) (same). Robbery is an enumerated offense

under Section 6302. Id. § 6302(2)(ii)(D). When a case proceeds directly to

the criminal division, the juvenile has “the option of requesting treatment

within the juvenile system[,]” through a transfer process of “decertification.”

Commonwealth v. Aziz, 724 A.2d 371, 373 (Pa. Super. 1999).

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juvenile court’s jurisdiction.3 Moreover, public interest requires

that [Defendant] receive treatment and rehabilitative services,

which are only available through the juvenile court. It is averred

that [Defendant] can establish by the preponderance of the

evidence that his case should be transferred to juvenile court for

treatment and rehabilitation.

Petition for Decertification, 1/19/23, ¶¶ 10-14 (paragraph numbering and

breaks omitted; footnote added; some capitalization modified).

Simultaneously with his petition for decertification, Defendant filed a petition

for an “amenability assessment,” to be prepared by the Juvenile Probation

Office. See generally Petition for Amenability Assessment, 1/19/23.

The decertification court detailed what next transpired in its Pa.R.A.P.

1925(a) opinion:

On January 23, 2023, [] Defendant filed a petition for [a] mental

health evaluation. A second interest of justice hearing was held

on January 24, 2023, wherein [the decertification court ordered

that] Defendant … be released forthwith to … Lancaster County

Child and Youth Services[. A]n amenability assessment of the

Defendant was ordered. [The c]harges were bound over to the

Court of Common Pleas on January 26, 2023.

The Defendant was formally arraigned on February 6, 2023.

At the time of arraignment, both a psychological and psychosexual

evaluation was ordered by [the decertification] court. A transfer

report was completed by Officer Lisa Rumsey [(Ms. Rumsey or

Officer Rumsey),] of [the] York County Juvenile Probation [Office,]

on March 2, 2023. Status hearings were held in this case on April

18, June 7, August 2, September 27, and October 30, 2023. At

each status hearing, both the Commonwealth and Defen[dant]

were awaiting the completion of psychological evaluations for the

Defendant. A decertification hearing was scheduled for November

16, 2023.

____________________________________________

3 Juvenile court jurisdiction expires when a delinquent child “attains 21 years

of age.” 42 Pa.C.S.A. § 6352(a)(5).

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Decertification Court Opinion, 1/16/24, at 2 (some capitalization modified).

Prior to the decertification hearing, both the Commonwealth and

Defendant obtained experts in the fields of clinical/forensic psychology. The

Commonwealth’s expert was Dr. Frank Dattilio, Ph.D. (Dr. Dattilio).

Defendant’s expert was Stephen Timchack, Psy.D. (Dr. Timchack). Both Drs.

Dattilio and Timchak prepared expert reports following their respective clinical

interviews of Defendant and review of his records. See N.T., 11/16-17/23,

Commonwealth Ex. 6, Defendant Ex. 2.

The decertification hearing took place on November 16 and 17, 2023.

The Commonwealth first presented testimony from Detective Emenheiser to

establish a prima facie showing that Defendant committed the armed robbery.

See N.T., 11/16-17/23, at 10-33. The decertification court found that the

Commonwealth had established a prima facie case. Id. at 42; see also id.

(Defendant’s counsel conceding, “given the low burden that prima facie is, I

believe that Detective Emenheiser’s testimony is sufficient.”).

The Commonwealth thereafter presented victim impact testimony from

the restaurant’s co-owners, Ms. Han and her husband, Aady Lin (Mr. Lin). Ms.

Han described her fear when Defendant pointed a gun at her face. Id. at 45.

Ms. Han testified she remained fearful following the robbery and lost sleep.

Id. at 46. Mr. Lin described the lasting fear that the robbery caused him and

his staff. Id. at 52-53.

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Notably, Defendant presented testimony from Willem Kiefer (Mr.

Kiefer), the executive director of the Bench Mark program (the program or

Bench Mark program), a fitness-based mentorship program in Lancaster. Id.

at 60. Mr. Kiefer stated Defendant began participating in the program after

the robbery, in February 2023. Id. at 64. Mr. Kiefer testified the program

began as a fitness-based mentoring program that has since

developed into an interconnected network of programs [that]

begin by supporting youth when they are incarcerated at the

Lancaster County Youth Intervention Center. We provide

programming that gets them through the facets of juvenile

probation. We provide community-based programming that

extends beyond that time on probation. … And in the best case

scenario[, the program] offer[s] part-time employment to the

individuals who succeeded through that network of programs.

Id. at 61; see also id. at 63 (Mr. Kiefer stating, “[f]or some individuals, they

may join the student leadership program [(the leadership program),] where

we offer part-time employment … [in] essentially helping [the program staff]

operate the open gym program.”).

Mr. Keifer described Defendant’s progress and leadership role in the

program:

[Defendant] has moved through the program faster than any

other individual that we’ve worked with. … [A]t a really early

stage[, Defendant] became a role model to other students and

helped us manage the group.

Id. at 65. Mr. Keifer testified Defendant’s progress was so impressive that

Mr. Keifer (a) asked Defendant to join the leadership program, where

Defendant has performed “excellently”; and (b) selected Defendant, out of

more than 200 participants, to be the subject of an informational video about

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the program. Id. at 69-70, 80; see also id. at 72 (Mr. Keifer stating, “In

each of the programs that I’ve seen, [Defendant] has taken initiative.”). Mr.

Keiffer testified Defendant also volunteered for numerous public speaking

engagements promoting the program, wherein Defendant talked “about what

he’s been through and what he may think could be done differently to support

individuals in similar circumstances.” Id. at 76-77.

The Commonwealth presented expert psychological testimony from Dr.

Dattilio, who described his clinical interview of Defendant, review of

Defendant’s records, and psychological findings. Id. at 241-44; see also id.

at 244 (Dr. Dattilio explaining that information regarding Defendant’s

participation in the program “was not available at the time that [Dr. Dattilio

performed his interview of Defendant], which was … [on] September 13th,

2023.”). Dr. Dattilio stated he “looked at all of the factors that I need to look

at about treatment and rehabilitation within the juvenile system prior to the

age of 21.4 And that’s the big hurdle in the room.” Id. at 269 (footnote

added). Dr. Dattilio testified he was “concern[ed] about whether or not

[rehabilitation] can take place in this very short period of time….” Id. at 270.

Dr. Dattilio opined, “I don’t know that there is a guarantee that [rehabilitation

is] going to be all finished when [Defendant reaches the age of] 21.” Id. at

271; see also id. at 272 (“I don’t know if it’s enough time. I don’t think it

____________________________________________

4 We discuss below the factors Dr. Dattilio referenced.

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is.”). Dr. Dattilio elaborated, “[t]hat’s why I’m testifying that to a reasonable

degree of psychological certainty[,] I … can’t say that [Defendant] is

completely amenable to treatment or rehabilitation prior to that demarcation.”

Id. at 272. But see also id. at 278 (Dr. Dattilio opining Defendant is

“amenable to treatment and rehabilitation, but not before the age of 21.”).

Defendant presented expert testimony from Dr. Timchak, who described

his clinical interview of Defendant, review of Defendant’s records, and

psychological assessments and findings. See id. at 161-84. Dr. Timchak

opined,

[Defendant] would benefit from treatment, supervision, [and]

rehabilitation in the juvenile justice system. And I was particularly

impressed with Mr. Kiefer’s testimony [as to] how well

[Defendant] is doing.

Id. at 184. Dr. Timchak stated, “I think long term[, Defendant] is a young

man who I firmly, wholly believe is amenable to treatment.” Id. at 192; see

also id. (Dr. Timchak testifying, “I think [Defendant’s] exposure to more

negative peers in an adult system is going to have a negative impact long

term and not be beneficial to society.”).

Significantly, Dr. Timchak confirmed it was his professional opinion that

Defendant “can achieve a level of rehabilitation that would keep the public

safe before the expiration of juvenile court jurisdiction[.]” Id. at 193. Dr.

Timchak elaborated that he

became more convinced [about Defendant’s prospect of

rehabilitation upon hearing] Mr. Kiefer’s testimony. Again,

although th[e program is] not a therapeutic program, it does

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provide evidence that [Defendant] is able to respond favorably to

those behavioral experiences.

Id.; see also id. at 194 (Dr. Timchak predicting Defendant would “respond

favorably to a [] structured treatment rehabilitation program in the juvenile

system in a fairly short amount of time.”).

Finally, the Commonwealth presented testimony from Officer Rumsey,

Defendant’s juvenile probation officer. Officer Rumsey prepared a thorough

“transfer report” in connection with the decertification hearing, following her

interview of Defendant and review of his records. Id. at 302-03. Officer

Rumsey testified she did not believe Defendant could be rehabilitated before

the expiration of the juvenile court’s jurisdiction: “I feel that [Defendant]

needs more time for treatment, supervision, [and] rehabilitation than the two,

a little over two years that [Defendant] has left.” Id. at 314; see also id. at

312 (Officer Rumsey stating, “two years is not enough time for treatment in

supervision. I feel like [Defendant] needs something a little bit longer and

more intensive.”).

The decertification court issued its ruling on the record at the conclusion

of the decertification hearing. See id. at 368-84.5 In sum, the decertification

court concluded Defendant had met his burden of proving, by a preponderance

of the evidence, that transferring his case to the juvenile division best served

the public interest. Id. at 369 (“[T]his Court is finding that there are

____________________________________________

5 We discuss the decertification court’s ruling in detail below.

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reasonable grounds to believe that the public interest is best served by a

transfer back to juvenile court.”); see also 42 Pa.C.S.A. § 6322(a) (providing

a petitioner requesting the transfer of their case to the juvenile division bears

the burden “to establish by a preponderance of the evidence that the transfer

will serve the public interest.”).

By an order entered on November 17, 2023, the decertification court

granted Defendant’s petition for decertification.6 The Commonwealth timely

filed a notice of appeal.7, 8 The Commonwealth filed a timely Pa.R.A.P.

____________________________________________

6 The decertification court did not issue a memorandum or findings of fact in

connection with its order granting decertification.

7 Orders “transferring a case from the criminal division to the juvenile division”

are “immediately appealable as of right.” Commonwealth v. Johnson, 669

A.2d 315, 323 (Pa. 1995).

8 The Commonwealth filed, contemporaneously with its notice of appeal, a

separate certification pursuant to Pa.R.A.P. 311(d), representing that the

decertification court’s ruling “will terminate or substantially handicap the

prosecution[.]” Rule 311(d) Certification, 11/20/23; see also Pa.R.A.P.

311(d) (“[T]he Commonwealth may take an appeal as of right from an order

that does not end the entire case where the Commonwealth certifies in the

notice of appeal that the order will terminate or substantially handicap the

prosecution.”).

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1925(b) concise statement, after which the decertification court filed an

opinion pursuant to Pa.R.A.P. 1925(a).9, 10

The Commonwealth presents a single issue for review: “Whether the

[decertification] court erred in granting Defendant’s petition for

decertification?” Commonwealth Brief at 4.

Our standard of review is well-settled: appellate courts

must not upset the certification decision of a juvenile court unless

the court has either failed to provide “specific reasons for its

conclusion that the juvenile is not amenable to treatment” or “the

court committed a gross abuse of discretion.” Commonwealth

v. Moss, 543 A.2d 514, 516 (Pa. 1988) (quoting Commonwealth

v. Stokes, 421 A.2d 240, 243 (Pa. Super. 1980)). The existence

of facts in the record that would support a contrary result does

not demonstrate a gross abuse of discretion. Id. at 516. To rise

to a level of gross abuse of discretion, the court rendering the

____________________________________________

9 In its Rule 1925(a) opinion, the decertification court opined the

Commonwealth waived its sole issue on appeal, since its vague Rule 1925(b)

concise statement failed to “identif[y], with sufficient detail, the error to be

raised on appeal.” Decertification Court Opinion, 1/16/24, at 3; see also

Concise Statement, 12/12/23 (identifying the following claim of error: “Trial

court erred in granting Defendant’s petition for decertification.”). Rule

1925(b)(4)(ii) mandates that “[t]he Statement shall concisely identify each

error that the appellant intends to assert with sufficient detail to identify the

issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). However, waiver

is inappropriate because the “issue of certification between the juvenile and

criminal divisions is jurisdictional and, therefore, not waivable.”

Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003)

(emphasis added) (citing Johnson, 669 A.2d at 320-21).

10 The decertification court stated in its Rule 1925(a) opinion that the reasons

for its grant of Defendant’s petition for decertification appeared in the

decertification hearing transcript. Decertification Court Opinion, 1/16/24, at

7 (noting the court attached the “relevant portion of the transcript” as an

exhibit. Further stating the court “find[s] no reason to alter or disturb” its

decertification ruling “placed on the record”); see also N.T. (decertification

hearing), 11/16/23, at 368-84.

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adult certification decision must have misapplied the law,

exercised unreasonable judgment, or based its decision on ill will,

bias, or prejudice. Commonwealth v. Rush, 562 A.2d 285, 287

n.1 (Pa. 1989).

Commonwealth v. Jackson, 722 A.2d 1030, 1032 (Pa. 1999) (citations

modified); see also Sanders, 814 A.2d at 1250 (“Decisions of whether to

grant decertification will not be overturned absent a gross abuse of

discretion.”). “As an appellate court, we are unable to usurp a [decertification]

court’s credibility determinations.” Commonwealth v. Ramos, 920 A.2d

1253, 1260 (Pa. Super. 2007) (citation omitted).

The Juvenile Act provides that, except in the case of the most serious

crimes,

if it appears to the court in a criminal proceeding that the

defendant is a child, … the court shall forthwith halt further

criminal proceedings, and, where appropriate, transfer the case to

the division or a judge of the court assigned to conduct juvenile

hearings….

42 Pa.C.S.A. § 6322(a). However, “[i]n determining whether to transfer a

case charging murder or any of the offenses excluded from the definition of

‘delinquent act’ in [42 Pa.C.S.A. §] 6302, [supra,] the child shall be required

to establish by a preponderance of the evidence that the transfer will serve

the public interest.” Id. (emphasis added); see also Commonwealth v.

Brown, 786 A.2d 961, 967 (Pa. 2001) (stating a preponderance of the

evidence standard is defined as the greater weight of the evidence, i.e.,

“evidence to tip the scales slightly in favor of” the moving party (quotation

marks omitted)). Instantly, because robbery is excluded from the definition

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of “delinquent act,” Defendant was not entitled to a transfer to juvenile court

as a matter of right. 42 Pa.C.S.A. § 6322(a). To prevail on his decertification

petition, Defendant had the burden of establishing that the transfer would

serve the public interest. Id.

Subsection 6322(a) further requires a decertification court to “consider

the factors contained in 42 Pa.C.S.A. § 6355(a)(4)(iii) (relating to transfer to

criminal proceedings).” Id. Subsection 6355(a)(4)(iii) provides, in relevant

part, that a decertification court may transfer a case,

where appropriate, to the division or a judge of the court assigned

to conduct criminal proceedings, for prosecution of the offense if

…

***

(4) The court finds:

….

(iii) that there are reasonable grounds to believe that the

public interest is served by the transfer of the case …. In

determining whether the public interest can be served, the

court shall consider the following factors:

(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;

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(F) the adequacy and duration of dispositional

alternatives available under this chapter and in the

adult criminal justice system; and

(G) whether the child is amenable to treatment,

supervision or rehabilitation as a juvenile by

considering the following factors:11

(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;

(IX) any other relevant factors[.]

42 Pa.C.S.A. § 6355(a)(4)(iii) (emphasis and footnote added). Although the

Juvenile Act requires a decertification court to consider all of the foregoing

factors, “it is silent as to the weight that should be assessed to each factor.”

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

____________________________________________

11 We hereinafter refer to the factors contained in subsection

6355(a)(4)(iii)(G) as “the amenability factors.”

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id. (stating that although a decertification court must consider all the

subsection 6355(a)(4)(iii) factors, “it need not address, seriatim, the

applicability and importance of each factor and fact in reaching its final

determination.”). Accordingly, the weighing process is entrusted to the sound

discretion of the decertification court. Id.

“Furthermore, we presume the [decertification] court considered the

entire record in making its determination, and it is not required to give a

detailed explanation justifying its decision.” Commonwealth v. L.P., 137

A.3d 629, 636 (Pa. Super. 2016). This Court has recognized that

[t]he presumption in this Commonwealth remains that if a court

has facts in its possession, it will apply them. When evaluating

the propriety of a certification decision, absent evidence to the

contrary, a reviewing court must presume that the juvenile court

carefully considered the entire record.

Sanders, 814 A.2d at 1251 (internal citations omitted).

Instantly, the Commonwealth argues the decertification court “erred in

granting Defendant’s petition for decertification[,] where there is significant

evidence that the [] court failed to carefully consider the entire record before

rendering its decision.” Commonwealth Brief at 19. The Commonwealth

claims the decertification court “misapplied the legal standard in determining

whether Defendant [could be] rehabilitated prior to the expiration of juvenile

[court] jurisdiction….” Id. at 22. Specifically, the Commonwealth points out

that at the conclusion of the decertification hearing, the decertification court

stated that “[Defendant] does not need to guarantee that

[rehabilitation] will happen. He only needs to prove it by

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preponderance of the evidence.” [N.T., 11/16-17/23, at 383.]

The decertification court is clearly wrong. See Commonwealth

v. Sourbeer, 422 A.2d 116 (Pa. 1980) (in considering psychiatric

testimony, if rehabilitation could not be assured during child’s

minority while subject to juvenile court jurisdiction, child has failed

to establish that she was amenable to juvenile rehabilitation).

Id. at 22-23 (emphasis in original; paragraph break omitted).

According to the Commonwealth, the decertification court’s “findings are

not supported by the record. … Neither Officer Rumsey, Dr. Timchak, nor Dr.

Dattilo opined that Defendant would be amenable to rehabilitation prior to the

expiration of the juvenile court’s jurisdiction.” Id. at 24; see also id. at 25

(“[A]t best, Dr. Timchak stated that Defendant was amenable to rehabilitation

and would make favorable progress.”). The Commonwealth maintains the

decertification court improperly disregarded “facts that support that

Defendant has substantial treatment needs that cannot be resolved in the time

remaining in the juvenile system.” Id. at 29; see also id. at 28 (“[T]here is

nothing of record to support that Defendant will be completely rehabilitated

by his 21st birthday, and the [decertification] court’s factual determinations

do not support its legal conclusions.”).

While it is certainly commendable that Defendant is doing well at

the Bench Mark Program, such efforts do not translate as to an

assurance that Defendant will be rehabilitated prior to the

expiration of juvenile court jurisdiction.

Id. at 27; see also id. at 28 (claiming “the Bench Mark Program is not … [an]

intensive therapeutic program.”).

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Defendant counters the decertification court properly granted

Defendant’s petition for decertification, and “the record reflects a thorough

and thoughtful consideration of all the relevant factors.” Defendant’s Brief at

6 (bold omitted). Defendant claims the decertification court appropriately

“made its decision after witnessing a classic ‘battle of the experts’ where two

qualified witnesses reached opposite conclusions.” Id. at 7.

A decertification ruling can only be reversed where it constitutes

a “gross abuse of discretion,” and the [decertification] court’s

siding with one expert over another is a uniquely weak basis for

finding an abuse of discretion—particularly given the court’s

wealth of experience with this subject matter.

Id. at 6 (bold and italics omitted); see also id. at 21 (Defendant asserting

the decertification court appropriately “went through all the relevant

considerations and sided with one expert over another in finding that

decertification was appropriate. This was not an abuse of discretion.”).

Defendant argues the Commonwealth misapprehends that a “juvenile

need not establish with absolute certainty that he will be completely

rehabilitated prior to termination of juvenile court jurisdiction in order to show

amenability to treatment….” Id. at 8 (bold and italics omitted); see also id.

at 8-9 (“The Commonwealth’s principal claim—that the [decertification] court

misapplied the law—depends on [the Commonwealth’s] assumption … that, to

demonstrate his amenability to treatment, [Defendant] was obligated to prove

with certainty that he would be completely rehabilitated before he turned

21.”). Defendant points out that under the Juvenile Act, “a juvenile seeking

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decertification bears a preponderance burden….” Id. at 9 (citing 42 Pa.C.S.A.

§ 6322(a), supra).

Our review of the record discloses that at the conclusion of the

decertification hearing, the decertification court addressed in turn each of the

amenability factors detailed above. See N.T., 11/16-17/23, at 375-84; see

also 42 Pa.C.S.A. § 6355(a)(4)(iii)(G).12 Initially, applying subsection

6355(a)(4)(iii)(G)(I), the court noted Defendant’s age. N.T., 11/16-17/23, at

375 (“At the time of the [robbery, Defendant] was 17[;] he is now 18 and 4

months.”). Next, the court addressed Defendant’s mental capacity under

subsection 6355(a)(4)(iii)(G)(II), finding his intelligence is average to above-

average, and that he “show[s] some insight into his behaviors.” Id.

The decertification court considered Defendant’s maturity, under

subsection 6355(a)(4)(iii)(G)(III). The court stated it

found the testimony of Mr. Kiefer to be very compelling. [The

court] also note[s] that, unfortunately, [neither] Ms. Rumsey

when she did her report, nor [Dr. Dattilio or Dr. Timchak], had the

benefit of Mr. Kiefer’s testimony or the progress [Defendant] has

made in th[e] program.

Id. at 375-76. The court emphasized, “Mr. Kiefer has indicated that

[Defendant] has already changed his thinking.” Id. at 377. The

decertification court found that Defendant’s

____________________________________________

12 The decertification court additionally considered each of the factors

contained in 42 Pa.C.S.A. § 6355(a)(4)(iii)(A)-(F), supra. See N.T., 11/16-

17/23, at 368-74 (considering, inter alia, the impact of the offense on the

victims and the community, public safety, and Defendant’s culpability).

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amenability to treatment in the Bench Mark program and his

demonstrated changes in his thinking from a victim of trauma to

a survivor of lived experiences and a leader among his peers

demonstrates a different level of maturity today than when the

incident occurred.

Id. at 380.

The decertification court stressed that,

without the hard work that [Defendant] has engaged in in … [the]

program, this would be a different decision by the court. However,

actions speak louder than words. We can speculate about whether

a juvenile is amenable to treatment, but it is hard to argue [with

the fact that Defendant] went through th[e] program faster than

his peers, that he became a leader among his peers, and that he

was chosen as one [out] of 200 people as a model for the

program, and that he is now engaging in community service

testifying and providing information to judges, probation officers,

and members of the House of Representatives on his lived

experiences. That is a significant change in thinking and it is a

demonstration of [Defendant’s] amenability to treatment.

Id. at 378-79.

Next, the decertification court considered Defendant’s criminal

sophistication, under subsection 6355(a)(4)(iii)(G)(IV). The court found,

“[t]he level of criminal sophistication is low. It takes no sophistication to point

a gun at someone.” Id. at 380.

The court also considered Defendant’s “previous records” and prior

delinquent history, pursuant to subsections 6355(a)(4)(iii)(G)(V) and (VI).

The court found, inter alia, Defendant’s “prior delinquent history was when he

was 11 and he successfully completed treatment.” Id. at 381. The court

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further stated it “do[es] not find that [Defendant] is a hardened criminal who

cannot be rehabilitated within the juvenile system.” Id. at 382.

Significantly, the decertification court also considered whether

Defendant can be rehabilitated prior to the expiration of the juvenile court’s

jurisdiction, pursuant to subsection 6355(a)(4)(iii)(G)(VII).

Whether [Defendant] can be rehabilitated prior to the expiration

of the juvenile court jurisdiction was the issue in this case. …

[Defendant] does not need to guarantee [rehabilitation] will

happen. He only needs to prove it by preponderance of the

evidence. And his demonstrated amenability to the Bench Mark

program goes a long way and is really the deciding factor for the

court as it relates to that issue.

Id.; see also id. at 383 (decertification court observing Officer Rumsey “did

not have the benefit of seeing [Defendant’s] recent successes [in the program]

in writing her report[,] as [her report] was done in April.”).

In announcing its ruling, the decertification court stated:

[Defendant] also presented[,] in addition to Mr. Kiefer’s

testimony[,] that he has a demonstrated amenability to

treatment[;] the testimony from Dr. Timchack who also indicated

that [Defendant] is amenable to treatment. Notably …, Dr.

Dattilio[] also indicated that [Defendant] is amenable to

treatment.

We note that the standard here is preponderance of the

evidence and the [c]ourt feels that [Defendant has] demonstrated

amenability to the Bench Mark program, as well as the testimony

from both experts, supports that he has met that burden.

The reason why the [c]ourt has some questions about the

testimony of Dr. Dattilio is that Dr. Dattilio testified that this was

a close call. In making that close call, again, he did not have the

benefit [] of [all of] the information provided in the treatment that

[Defendant] has undergone. But Dr. Dattilio kept saying I …

[decided] this way because I could not guarantee that

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[Defendant] could complete the treatment. The standard is not

guarantee, it is not mathematical certainty, it is not beyond a

reasonable doubt. It is a preponderance of the evidence. And

the court was … struck by [Dr. Dattilio’s] repeated use of I can’t

guarantee, which is not the standard in this case. That is not the

burden of proof.

Id. at 379-80 (emphasis added); see also id. at 271 (Dr. Dattilio opining, “I

don’t know that there is a guarantee that [rehabilitation is] going to be all

finished when [Defendant reaches the age of] 21.” (emphasis added)).

In its Rule 1925(a) opinion, the decertification court concluded it

properly exercised its discretion in transferring Defendant’s case to the

juvenile division, reasoning as follows:

Following the decertification hearing …, th[e decertification] court

placed on the record [its] reasons for finding that there are

reasonable grounds to believe that the public interest is best

served by a transfer back to juvenile court. [The court]

extensively reviewed each factor laid out in 42 Pa.C.S. §

6355(a)(4); [the court] find[s] no reason to alter or disturb [its]

original order…. … Th[e decertification] court found the testimony

of [Mr.] Kief[]er … to be particularly compelling. It is clear to th[e

decertification] court that the Defendant is amenable to treatment

in the juvenile court system and has the capacity to significantly

change his thinking moving forward, based on the steps he has

already taken and the progress he has already made in the Bench[

M]ark program.

Decertification Court Opinion, 1/16/24, at 7-8 (some capitalization modified).

Our review confirms the decertification court’s conclusion is supported

by the record, and we discern no gross abuse of its discretion in transferring

Defendant’s case to the juvenile division. The decertification court

thoughtfully considered and applied all of the amenability factors (as well as

Section 6355 as a whole), and made a reasoned determination upon

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evaluating all of the evidence. See L.P., 137 A.3d at 637 (appellate courts

presume a decertification court considered the entire record when assessing

the amenability factors); see also Jackson, 722 A.2d at 1032 (stating the

“existence of facts in the record that would support a contrary result does not

demonstrate a gross abuse of discretion.”). The decertification court found

the testimony and expert opinion of Dr. Timchak more credible than that of

Dr. Dattilio; we decline the Commonwealth’s invitation to disturb the court’s

credibility determination. See Ramos, 920 A.2d at 1260; Commonwealth

v. Furness, 153 A.3d 397, 401, 404 (Pa. Super. 2016) (assessments of

credibility and conflicts in the evidence are for the fact-finder to resolve;

appellate courts may not reexamine credibility determinations or substitute

their judgment for that of the fact-finder).

Finally, there is no merit to the Commonwealth’s claim that the

decertification court misapplied the law. See Commonwealth Brief at 22-23

(citing Sourbeer, 422 A.2d 116, in support of Commonwealth’s claim the

decertification court “applied the wrong legal standard in considering whether

Defendant can be rehabilitated prior to the expiration of the juvenile court

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jurisdiction.”).13 In Sourbeer, the appellant shot and killed his mother when

he was 14 years of age. Sourbeer, 422 A.2d at 118. After the

Commonwealth charged appellant as an adult with first-degree murder, he

filed a petition to transfer his case to the juvenile division, which the trial court

denied. Id. at 119. The Pennsylvania Supreme Court affirmed the denial of

decertification,14 emphasizing that “[a]ppellant’s own psychiatrist testified

that he could give only a very rough and questionable estimate of how long it

would take for [appellant] to overcome” appellant’s “persistent” psychological

disorder. Id. The Court elaborated:

When the appellant’s psychiatrist was asked to give a time period

when there would be a significant change in [appellant’s]

personality disorder, he could only say that such a change could

be expected in the vicinity of the ages thirty-five or forty. This,

coupled with the fact that appellant was fifteen years old and

would therefore be subject to the authority of the juvenile system

for only three more years, amply supports the denial of

[appellant’s] petition for transfer to Juvenile Court.

Id. at 120.

____________________________________________

13 The Commonwealth also cites Commonwealth v. Cessna, 537 A.2d 834

(Pa. Super. 1988). Commonwealth Brief at 23. The Cessna Court briefly

cited Sourbeer for the proposition: “In considering psychiatric testimony, []

if rehabilitation could not be assured during the child’s minority while subject

to the juvenile court jurisdiction, the child has failed to establish that he was

amenable to juvenile rehabilitation.” Id. at 839 (citing Sourbeer, 422 A.2d

116). However, the foregoing language in Cessna does not appear in

Sourbeer. See Sourbeer, 422 A.2d at 119-20.

14 The Sourbeer Court did not cite or apply 42 Pa.C.S.A. §§ 6322 or 6355.

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Here, unlike the situation in Sourbeer, Dr. Timchak confirmed he was

“convinced” that Defendant “can achieve a level of rehabilitation that would

keep the public safe before the expiration of juvenile court

jurisdiction[.]” N.T., 11/16-17/23, at 193 (emphasis added); see also 42

Pa.C.S.A. § 6355(a)(4)(iii)(G)(VII). Dr. Timchak further confirmed (a)

Defendant “demonstrated a great deal of progress just in the short amount of

time that he’s been in the Bench Mark program”; and (b) “there can be a lot

of progress achieved in [relatively short] timeframes….” Id. at 194.

Accordingly, Sourbeer is inapposite.

Finally, we are persuaded by Defendant’s argument that

it would make no sense to conclude that amenability [to

rehabilitation] cannot be shown—let alone that decertification is

only allowed—where complete rehabilitation before 21 is an

absolute certainty. In fact, psychologists and psychiatrists trade

in predictions and projections; they do not make guarantees. And

as the [decertification] court observed, [Defendant’s] burden was

the preponderance of the evidence—not an absolute guarantee.

[The preponderance standard] is right there in the statute. 42

Pa.C.S.A. § 6322(a) [(providing a petitioner requesting

decertification must “establish by a preponderance of the evidence

that the transfer will serve the public interest.”).]

Defendant’s Brief at 10-11 (emphasis omitted; citation modified); see also

id. at 11 (correctly pointing out that “the possibility of rehabilitation before

age 21 is only one of” the amenability factors, “which, in turn[,] is only one of

eight factors falling under the larger umbrella of ‘the public interest.’” (citing

42 Pa.C.S.A. § 6355(A)(4)(iii))).

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Based on the foregoing, we affirm the order granting Defendant’s

petition for decertification.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/23/2024

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