Commonwealth v. Brown

Pennsylvania, COMMONWEALTH

Appellee Anthony BROWN, Appellant.

Jordan Pennsylvania.

Superior Court of

Argued Jan. 11, 2011.

Filed March Rosado, On October Philadelphia, M. filed a Lourdes 6322(a) petition pursuant to 42 appellant. to transfer his case from the criminal divi- Carusone, D. Office of the Christopher January sion to the division. On General, Attorney Harrisburg, for Com- 12, 2010, 2010 and March the trial monwealth, appellee. hearings on petition. court held ALLEN, OLSON, BEFORE: alia, hearings, Appellant, At the inter COLVILLE,* JJ. presented expert testimony of Dr. Kirk Heilbrun, a psycholo- clinical and forensic ALLEN, OPINION BY J.: gist. Dr. Heilbrun administered several Anthony Brown (“Appellant”), Jordan psychological standard tests on Appellant, the trial or- juvenile, appeals from court’s opined was amenable to decertify his motion to denying der juvenile system. treatment R.R. at proceedings criminal and transfer the case 66-75; 88-89. division. con- tends that the trial court committed an cross-examination, On the Common- applying provision error of law in of the wealth asked Dr. Heilbrun if Appellant statute, decertification Pa.C.S.A. that he admitted committed the crimes. 6355(a)(4)(iii), infringed § in a manner that R.R. at 92. Dr. Heilbrun testified that upon rights against his Fifth Amendment examinations, during the Appellant stated review, we con- Upon self-incrimination. that he was innocent. R.R. at 92. The applica- that Fifth clude then Commonwealth asked Dr. Heilbrun if proceedings. ble to decertification We Appellant’s guilt denial of had effect further that the trial ap- conclude court’s Appellant on his conclusion that was ame- 6855(a)(4)(iii) § plication of 42 Pa.C.S.A. nable to treatment. R.R. at 92-93. Dr. chilled) (or, least, needlessly violated at responded Heilbrun “impossi- that it was rights against self-incrimina- pre-trial ble at to stage” [the] consider Accordingly, tion. we vacate trial Appellant’s assertion of innocence as indi- court’s order and remand for a new decer- cating Appellant that could not be rehabili- hearing. tification Heilbrun, tated. R.R. at 93. Dr. nonethe- procedural The relevant facts and histo- less, in hypothetical conceded scenario ry of are On this case as follows. Febru- that if a defendant were convicted of a 20, 2009, years ary Appellant, who was 11 crime, innocence, and still maintained his time, allegedly old at the Kenzie murdered problem then there would be “a for treat- baby. Marie Houk and her unborn Houk ment” and rehabilitation. at 93. R.R. years Appel- was 26 old and the fiancée of response, In the Commonwealth called single gun- lant’s father. Houk died of a testify Dr. O’Brien to an in expert John head, to shot wound the back of her Dr. psychiatry. field of O’Brien con- baby oxy- her unborn died due to lack of psychiatric Appel- ducted a evaluation of gen. charged Appel- The Commonwealth lant, Appellant very and noted that “was homicide, § lant with 18 Pa.C.S.A. talking about “the evidence child, avoidant” and homicide of an unborn 18 Pa. presented at preliminary that was C.S.A. the criminal division of hearing” allegations the Court of Common Pleas. and also “the factual * judge assigned Superior Retired Senior Court. Appellant that failed to establish R.R. at 277-78. Dr. found

of the offense.” he amenable to treatment. that was stated he that O’Brien testified crime, opined commit the did not an Application then filed R.R. could not be rehabilitated. Amend the March 2010 Order to In- 277-78; particular, 280-81. Dr. Specified clude the Statement in 42 Pa. concluded: O’Brien 702(b). Appellant contended C.S.A. court, him by requiring the trial to admit or reacts [Appellant] ... tends to avoid accept responsibility prove which, by avoiding taking responsibility, treatment, he was amenable to violated his complicates process my opinion, rights against Fifth Amendment self-in- rehabilitation, ... to be because order crimination. rehabilitated as result a conviction crime, you take for a serious have to By May order dated the trial your ... responsibility for behavior granted Appellant’s application. March trial court amended its [Appellant And make the first cannot] order to include a statement that the order if ... step rehabilitation] [he] [towards controlling question “involves a of law as responsibility doesn’t take for be- [his] which ground there is substantial ... havior an opinion difference of and that immedi- R.R. at 280-81. Dr. O’Brien further noted appeal may materially ate from the order experience, majority that in his a great advance ultimate termination of the that he defendants encountered would 20; matter.” R.R. at see not responsibility take for their criminal 702(b). addition, § the trial court found their following actions convictions. R.R. at Pennsylvania “that there no appel- exists 280-81.1 authority late that has ever addressed a 29, 2010, right against On March defendant’s the trial court de- self-incrimination proceeding in the context of a petition. court, decertify nied The trial alia, a criminal case to court.” R.R. at inter concluded that Appellant was not juve- amenable to treatment within the 20. system

nile and could not be rehabilitated order, May In its the trial by age of 21. Trial Opinion Court court also on reasoning elaborated its (T.C.O.), 3/29/10, at 9. In making its de- finding that Appellant was not amenable termination, the trial court credited Dr. to treatment. The trial court stated that opinion O’Brien’s that “the step first to- concluding it “was not a matter as of law wards rehabilitation cannot be taken un- a child must confess in order to be [that] [Appellant] less would come forward and court, decertified to and that take responsibility for his Id. actions[.]” by discussion the court of the relationship at 14. The trial “persuasive court found taking responsibility between for the un- reasoning Appel- from Dr. O’Brien” that derlying offense and rehabilitation was lant would not take responsibility for his solely in reference to addressing and eval- actions, thus, prospects “the of reha- uating the evidence on that R.R. issue[.]” bilitation within the jurisdic- Although accepted at 20. the trial court tion likely to be [was] unsuccessful.” Id. Dr. expert testimony, O’Brien’s the trial reason, at 15. For find, this the trial court court insisted that it did not as a 1. Dr. O’Brien's work has been petition hearings. almost exclu- transfer R.R. at sively with During adult defendants. his ca- reer, he only has been involved in 10 to 15 law, amenability a lack of to treatment [Appellant] “that must con- matter of misinterpretation of 42 R.R. constitute rehabilitated^]” in order to be fess § 6322 that violates Due Pa.C.S.A. at 20. Process and Fundamental Fairness 11, 2010, a Peti- Appellant filed On June guaranteed by the United States from an Appeal Permission to tion for Pennsylvania Constitutions? R.R. at Interlocutory Order this Court. stage, pre-adjudicative 3.At did issued July this Court 42-54. On finding Trial that a child’s Court’s an interloc- permitting curiam order per of innocence demonstrated assertion in this matter.2 utory appeal amenability a lack to treatment Appellant raises follow- appeal, On misinterpretation of 42 constitute for review: ing issues § 6322 that violates the Pa.C.S.A. stage, is it pre-adjudicative 1. At the of innocence and presumption Trial an abuse of discretion for the guaran- self incrimination under 42 to base a decision Court by teed the United States and Penn- that a child is not Pa.C.SA. sylvania Constitutions? therefore amenable to treatment and Brief for at 5.3 not be trans- the case should Here, charged Ap- the Commonwealth juvenile system, on the ferred to pellant with homicide and homicide of an the child has not admitted fact that unborn child. committing prior the offense hearing? the decertification Act, Juvenile 6301 et pre-adjudicative stage, seq., designed protec- 2. At a did the effectuate a child’s finding public providing Trial Court’s tion children “delinquent super- assertion of innocence demonstrated who commit acts” with Johnson, (citation may appeal.”) 2. We note that in Commonwealth v. be vindicated on omit- (1995), ted). 542 Pa. 669 A.2d 322-323 Because has adhered to the 702(b), Supreme the § our Court authorized Common- dictates of 42 Pa.C.S.A. we have granting appeal wealth to from an order jurisdiction appeal pursuant the to that over ju- transfer from the criminal division to the statutory provision. See id. at 195-96. venile division. The Court concluded that Commonwealth, prospective from the of the support Appellant's position, an 3. of ami- granting qualified an order transfer as an cus curiae brief was filed on behalf of the interlocutory appeal as of under Pa. Justice, Campaign for Youth the Defender As- 311(d) jeopardy R.A.P. because double at- Pennsylvania Philadelphia, of the sociation juvenile adjudica- taches at the initiation of a Shook, Society, Jeffrey Prison Professor Pro- However, tory hearing. in the Id. converse Scott, Barry fessor Elizabeth Professor C. situation, juvenile appeal where a seeks to Feld, Wrongful the Center on Conviction of transfer, denying from an order the order is Youth, Campaign and the for the Fair Sen- interlocutory ju- non-appealable, and and the tencing primarily of Youth. The brief is de- process venile must resort to the in 42 Pa. discussing neurological psy- voted to the and 702(b) appellate § C.S.A. to obtain immediate chological development preadolescents and McMurren, review. Commonwealth v. juvenile justice system the as a rehabilitative ("Where (Pa.Super.2008) ju- A.2d social institution. appeals ... venile the denial of transfer from Although enlightening, informative and the division, jeopardy protec- the criminal double information contained in the amicus brief was implicated. ... tions are not Such orders are provided to the trial court for consider- not interlocutory, appealable and are not until Therefore, ation. the amicus brief was not judgment The of sentence has been entered. upon by rending rights relied this Court in this defendant’s to contest the trial court’s fully preserved opinion. ... transfer decision are [and] (C) rehabilitation, vision, pro- safety public and care while the threat to the of the ability child; the responsibility any posed by individual the moting member of the com- productive become a (D) the nature and circumstances of the 6301(b)(2). § munity. Pa.C.S.A. child; allegedly by offense committed the person a “child” as a Juvenile Act defines (E) degree culpability; the of the child’s years age. eighteen who is under (F) adequacy and duration of dispo- § most crimes Typically, Pa.C.S.A. sitional alternatives available under this juveniles juvenile are tried in the involving chapter justice the adult criminal Pleas. court of Court of Common system; and however, legislature, Our has deemed (G) whether the child is amenable to they crimes so heinous that are ex- some treatment, supervision or rehabilita- “a delinquent cluded from the definition of juvenile by considering tion as a 6322(a) § act.” to 42 Pa.C.S.A. Pursuant following factors: 6355(e), § juvenile charged when a (I) age; crime, including any with a murder or (II) capacity; mental excluded from the the other offenses defi- (III) maturity; act” in 42 “delinquent nition of Pa.C.S.A.

§ the criminal division of the Court (IV) degree of criminal sophistica- jurisdic- Pleas is vested with Common child; by tion exhibited tion. 6302 (stating See (V) records, previous any; if “delinquent act” shall not include the (VI) the nature and extent of prior murder); crime v. Commonwealth Ra- delinquent history, including the success mos, A.2d 1258 (Pa.Super.2007). any previous or failure of attempts involving a case goes When court to rehabilitate the division, directly juve- to the criminal child; request nile can treatment within juve- (VII) whether the child can be reha- system through process nile a transfer prior expiration bilitated of the called “decertification.” Commonwealth jurisdiction; court Sanders, (Pa.Su- 814 A.2d (VIII) probation reports, or institutional decertification, per.2003). To obtain it is any; if juvenile’s prove, by burden to a pre- (IX) factors; any other relevant evidence, ponderance of the that transfer system 6355(a)(4)(iii) best serves 42 Pa.C.S.A. (emphasis public added). interest. 42 Pa.C.S.A. 6322(a); Smith, § Commonwealth v. 950 Act requires While Juvenile 327, A.2d 328 (Pa.Super.2008). that a decertification court consider all of 6322(a), §

Pursuant the decertifica- factors, these it weight is silent as to the tion court shall consider the factors con- Sanders, assessed to each the court. 6355(a)(4)(iii) § tained in in determining “[wjhen However, 814 A.2d at 1251. whether the child has established that the juvenile seeks to have his case transferred public transfer will serve the interest. from the criminal division to the These factors are as follows: division, he must show that he is need of (A) the impact of the offense on the treatment, and amenable to supervision or victims; victim or rehabilitation in the system.” (B) Johnson, 568, the impact of the offense on the Commonwealth v. 542 Pa. (1995). community; 669 320-321 “If the evi- A.2d cally, Appellant asserts that the trial court fails to establish that the presented denee fea- special rights against benefit from the violated his self-incrimina- youth would juvenile system of the programs effectively required tures and it him to tion because sparing special is no reason for accept responsibility and there or admit peti- youth prosecution, from adult he was amenable to treatment prove that jurisdiction be denied and re- tion must capable agree. and of rehabilitation. We with the criminal division.” Id. mains appellant challenges an When The ultimate decision of whether statute, constitutionality he or she certify a minor to stand trial as an adult presents pure question this Court with a of a decertifi- is within the sole discretion law, which our of review is de standard Sanders, 814 A.2d at 1251. cation court. scope plenary. novo and our of review is not a decision to This Court will overturn Omar, v. 602 Pa. Commonwealth grant deny decertification absent a (2009). A.2d “As a threshold An gross abuse of discretion. Id. at 1250. matter, a presumed statute is to be consti merely error abuse of discretion is not an only tutional and will be invalidated as misapplica involves the judgment but if clearly, palpably, unconstitutional it and overriding of the law or the exer tion or plainly rights.” violates constitutional judgment manifestly cise of a unreasonable Morgan, v. 913 A.2d Commonwealth ill upon partiality, prejudice or will. based (citation .omitted). (Pa.Super.2006) Pennington, 751 A.2d Commonwealth Further, may a defendant contest the con (Pa.Super.2000). stitutionality, face statute on its or as- the trial The issue in this case involves applied. application court’s of 42 Pa.C.S.A. A facial attack tests a law’s constitution- 6355(a)(4)(iii)(G) (G)(VTI), § namely ality based on its text alone and does not whether “was amenable to treat- consider the facts or circumstances of a ment” and whether “can be re- attack, particular as-applied ease. An prior expiration habilitated of the contrast, does not contend that a law is jurisdiction.”4 court unconstitutional as written but that its brief, Appellant In his mounts an as- application particular person to a under applied challenge Pa.C.S.A. deprived circumstances particular 6355(a)(4)(iii)(G) (G)(vii). Initially, person right. of a constitutional A crim- Appellant contends that a matter may inal defendant seek to vacate his fairness, fundamental the Fifth Amend- by demonstrating conviction a law’s fa- rights ment self-incrimination as-applied unconstitutionality. cial or apply hearings. should to decertification v. Marcavage, United States 609 F.3d premise, Appellant argues From this (3d Cir.2010) (citations omitted). the trial applied 6355(a)(4)(iii)(G) (G)(vii) Amendment, to the facts The Fifth in rele way infringed upon part, provides person of his case in a his vant that no “shall rights against Speeifi- compelled any self-incrimination. be criminal case to be a jurisdiction terminating 4. The Juvenile Court has of a de- court shall enter an order linquent twenty-one child if the child under juvenile. is supervision of the Pa.R.J.C.P. 630. years delinquency and an act of committed Accordingly, Appellant has the burden to prior reaching age eighteen. to the 42 of See prove that he is amenable to treatment before juve- §§ and When the 6302 6303. age 21. he reaches the of age twenty-one, nile the the has attained 494 juvenile court to himself.” Const. transfer a child from the against U.S.

witness system “critically not a “The Fifth Amendment the criminal court was Amend. V.5 against being individual “the only important” proceeding the entitled to es- protects involuntarily against process called as a witness fair treatment.” sentials of due and prosecution Indeed, but also consequences himself in a criminal of a transfer ques official the Su- privileges hearing him not to answer can be monumental. As any him in other put proceeding, preme tions to Court of California observed: criminal, informal, or where civil or formal hearing The result of a is not [transfer] incriminate him in fu might the answers adjudication guilt; a final but v. proceedings.” ture criminal juvenile to an Lefkowitz certification of offender 70, 77, 316, Turley, 414 U.S. 94 S.Ct. 38 accurately adult court has been charac- (1973). availability L.Ed.2d 274 “[T]he punishment terized as “the worst privilege does not Amendment] the [Fifth system empowered is inflict.” upon type proceeding turn which (Note, Separating the from the Criminal invoked, protection upon its but Delinquent: Due Process Certifica- nature of statement admission (1967) tion Procedure 40 So.CaLL.Rev. exposure which it invites.” Estelle v. 162.) 158, Here, juvenile] because [the Smith, 454, 462, 1866, 101 U.S. S.Ct. was bound over to criminal court to face (1981) (citation omitted). 68 L.Ed.2d 359 charges, penalty murder she could face a privilege against The Fifth Amendment (Pen. imprisonment. as severe as life self-incrimination can be asserted in 190.5.) Code, 190, §§ Had she been proceeding “in which the witness reason juve- found fit to be rehabilitated in the ably sought, believes that the information system, normally nile she could not have or discoverable as a result of his testimo Authority been confined to the Youth ny, could be in a subsequent used state or beyond her birthday. 25th proceeding.” federal criminal United Court, Ramona R. v. Superior Cal.3d 666, 672, Balsys, States U.S. 118 802, 810-11, 204, Cal.Rptr. 693 P.2d (1998). 2218, 141 S.Ct. L.Ed.2d 575 (1985).6 It is well-settled that the Fifth Following spirit the collective of In re Gault, Kent, applicable Estelle, Amendment is to juvenile pro majority ceedings that decide the issue of guilt jurisdictions state court have held adjudicate whether delin Fifth Amendment applies Gault, 1, quent. In re hearings, U.S. 87 S.Ct. transfer and that a can- 1428, (1967). Moreover, 18 L.Ed.2d 527 compelled in not be to incriminate him/her- States, See, Kent v. United part proceedings. U.S. 561- self as of those e.g., (1966), State, 86 S.Ct. 16 L.Ed.2d 84 M. v. 124 Nev. William 196 P.3d Davis, Supreme (2008); United States Court concluded 456 State v. Kan. that, although (2000); not an adjudicatory pro 998 P.2d 1127 Commonwealth v. ceeding, W., a hearing Wayne to determine whether to 414 Mass. 606 N.E.2d 1323 Similarly, Pennsylvania 5. may Constitution state seek to have the child transferred to provides person compelled However, "cannot be criminal adult court for trial. give evidence himself.” Pa. Const. discussed, previously the reverse occurred in I, § Art. charged this was as an adult case— sought juve- in criminal court and transfer to (as 6. Under California law well as a number nile court. states), of other the child accused of commit- ting charged juvenile a crime is as a and the

495 State, K.W.M., (1993); P. v. 112 N.M. or innocence.” 598 S.W.2d Christopher (1991); R., Hana, 662; 210 P.2d 485 Ramona at accord 504 at 174- 816 N.W.2d 794-95; view, P.2d at In re Cal.Rptr. According minority 693 to the (Minn. S.J.T., N.W.2d 341 hearing “comparatively 736 transfer is a infor- Welfare of A.D.G., 895 People ex rel. Ct.App.2007); proceeding,” procedure mal and “the itself State, (Colo.App.1994); 1067 R.H. v. P.2d a juvenile’s liberty.” cannot lead to loss of (Alaska App.1989); In re 777 P.2d 204 Hegney, In re 158 P.3d at 1203. For these Action, County, Appeal in Pima Juvenile reasons, minority the concludes that view (App.1984); Ariz. 679 P.2d 92 139 inapplicable the Fifth Amendment is (Okla.Crim. State, v. 544 P.2d 1270 J.T.P. juvenile hearings. transfer App.1975). Although most of the above cases ad- is, however, There a notable amount of dressed the Fifth Amendment in the situa- authority contrary. See Otis v. sought tion where the state transfer from State, 590, 142 (2004); Ark. 615 355 S.W.3d court, juvenile to criminal reasoning their Hana, v. 443 Mich. People N.W.2d where, here, equally applicable is as the State, (1993); v. K.W.M. S.W.2d juvenile seeks transfer from criminal to (Tex.Civ.App.1980), Simpson but see i.e., court, juvenile decertification. Aside State, (Tex.Ct.App. 12th S.W.3d from the fact that the of proof burden lies Dist.2005); Heg In re Pers. Restraint of hearings, with the state transfer while ney, Wash.App. 158 P.3d 1193 proof the burden of lies with the A.B., (2007); State ex rel. 936 P.2d 1091 in hearings, decertification there are no (Utah Ct.App.1997). major procedural or substantive differ- general, majority the view concludes ences transfer between and decertification applies the Fifth Amendment to a proceedings, purpose ultimate hearing transfer because a trans Court, outcome remains the same. This hearing “comparable fer is seriousness accordingly, applies reasoning of the Davis, prosecution.” to criminal 998 P.2d above case law to determine whether the majority The view at 1136. finds applicable Fifth Amendment is to decertifi- hearings pro are not “neutral transfer hearings. cation rather, ceedings;” they “fully are adver adversary Given the nature and sary proceedings in which the burden of severe, consequences of a potential jamenabili establishing probable child’s [ hearing decertification in—life ty formally treatment allocated [to is prison parole follows without Court R.H., —this

party].” (quoting Id. P.2d majority view and concludes that the 210). Additionally, majority view applicable Fifth Amendment is to decertifi- government’s stresses that the role hearings. cation For the that fol reasons hearings acting transfer “is not sole [one] low, disagrees with minority this Court ly in the interest of the child.” Id. view. view, contrast, minority finds that First, minority disregards hard view juvenile merely presented “with practical and can not to incriminate results of a transfer choices” choose hearing. hearing, at a ex rel. which has been described one himself transfer State A.B., minority sentencing at 1100. The view commentator as “a decision 936 P.2d hearing represents puni- a choice between the emphasizes also that a transfer proceedings disposition the venue of the tive of adult criminal court and determines disposition juve- of the adjudication and “is not an child’s the ‘rehabilitative’ Ghee, criminal petition keep jurisdiction the Commonwealth nile court.”7 1275, 1279 (Pa.Super.2005), “only 889 A.2d division—for this is the available av- the acknowledged sig- of this Court panel by enue” which the Commonwealth could transfer or decertification and nificance of Moreover, try an adult. the Appellant as commented: privilege Fifth Amendment focuses not on system inherently confers juvenile

The rather, “type proceeding,” “upon the but instance, benefits. For substantial the nature of the statement or admission goal is to rehabilitate juvenile system’s exposure and the which it invites.” Es- on an individual basis with- juvenile (cita- telle, 101 S.Ct. 1866 U.S. criminal, marking him or her as a out omitted). tion juvenile. penalize rather than to Third, importantly, and most the minori- juvenile public- is also shielded from ty underlying view undermines the intent confined, ity. may He she be but or the Fifth scope broad Amend- may exceptions, jailed rare not be with privilege. ment The United States Su- may He along with adults. or she be detained, preme privilege has held that only attaining age but until Court (21) twenty-one years. The child is applies proceed- to “formal or informal” protected against consequences id., also ings, protects testimony pro- if it adult conviction such as the loss of civil link in vides “a the chain of evidence need- rights, adjudication against the use of prosecute ed to the claimant for a [] him her in subsequent proceedings, or States, crime.” v. United Hoffman disqualification public employ- for 479, 486, U.S. S.Ct. L.Ed. 1118 ment. (1951). (or juvenile compelled If a is pro- majority Id. The view therefore conforms incentive) an vided with to incriminate with our observation Ghee. himself at transfer or decertification Second, hearing, the minority incriminating mischaracter- evidence could view izes proceedings transfer decertification possibly be used in the him/her simply as an informal event that deter- subsequent criminal or pro- court agree mines the venue of the case. We ceeding. While a minor does not have a with the court in R.H. that trans- constitutional be retained proceedings realistically fer “[cannot] be Hana, juvenile system, 504 N.W.2d at only said to affect the forum where the a state cannot a procedural devise mecha- adjudicated. juve- issue of be A will nism in which to coerce a minor to volun- nile proceeding [transfer/decertification] teer incriminating evidence that could only available avenue which the serve as a basis for criminal sanctions. may prosecute state seek to a child as an conclude, accordingly, We that the essen- adult.” 777 Although juris- P.2d at 210. process tials of due mandate that the Fifth in Appellant’s diction case originally was applies to decertification hear- court, vested in criminal ings. jurisdiction. is vested with concurrent Ap- Having pellant concluded that the Fifth Amend- statutory right has a to seek trans- division, rights against fer to the ment and the self-incrimination are Com- monwealth, adversary, must applicable contest the in decertification hearings, we Feld, (1984). Barry Criminalizing C. Juvenile Jus- 69 Minn. L. Rev Court, tice: Rules Procedure the Juvenile

497 presumptive of Nevada enacted a Appel- issue of whether State now address the in this case. rights permitted gov- where violated transfer statute which the lant’s try juvenile offenders in crimi- ernment to against self-in privilege “The particular, nal In the statute man- court. an individu generally protects crimination juveniles years age 14 dated to incriminate being compelled al from charged older who had been with certain any manner.” himself Commonwealth presumptively offenses were to be certified (Pa.Super.2003). 743 Long, v. 831 A.2d adults and tried in criminal court. as Un- to guaranteeing to the “In addition statute, the juveniles der the could rebut immunity granted, is remain silent unless by proving that when presumption only self- proscribes the Fifth Amendment it they committed the crime was result com genuine incrimination obtained a of substance abuse or emotional or behav- testimony.” v. pulsion Commonwealth In problems. ioral order to rebut (Pa.Su Padillas, 356, 362 997 A.2d however, presumption, juveniles had to (citation omitted). For Fifth per.2010) they admit that had committed the crime exists purposes, compulsion Amendment they charged. with which were Addition- when some factor denies the individual crimi- ally, juveniles’ admissions of the admit, deny, to or to refuse “free choice to against conduct could be used them in nal 314 California, to answer.” Lisenba v. subsequent proceeding a because the stat- 241, 62 S.Ct. 86 L.Ed. 166 U.S. juveniles’ ute not immunize the state- did (1941). of the Fifth When the assertion circumstances, In ments. these Su- privilege subject “pen to a is Nevada, silentio, preme Court of sub “a free choice to remain alty,” it forecloses found that of trial in the prospects “compels” therefore the incrim silent” and court, opposed juvenile criminal to inating testimony. v. Garner United court, operated penalty as a that sufficient- States, 648, 661, 1178, 47 424 U.S. 96 S.Ct. ly incriminate them- compelled juveniles to (1976). Further, “penalty L.Ed.2d 370 selves. imprisonment,” not restricted to fine or instead, encompasses imposition but “the M. Ultimately, the court in William con- sanction which makes assertion of presumptive cluded that the transfer stat- costly.” privilege the Fifth Amendment ute unconstitutional under the Fifth was Klein, 511, 514, 87 Spevack 385 U.S. required Amendment because the statute (1967) (citation 625, 17 L.Ed.2d 574 S.Ct. juveniles to incriminate themselves omitted); quotation and internal marks see to and obtain presumption order rebut the 24, 35, Lile,

McKune v. 122 U.S. S.Ct. transfer to court. 196 P.3d (2002) (plurality). L.Ed.2d (concluding “requirement that the statute’s criminal charged admit the

Generally, violating to avoid de conduct, himself, thereby incriminate rights, fendant’s Fifth Amendment a stat presumption order to overcome the require ute cannot a defendant to incrimi unconstitutional.”). adult certification is nate himself. See Marchetti v. United States, U.S. S.Ct. Although binding M. is not on William (1968). L.Ed.2d 889 Court, persuasive. this we find it to be First, M., the statute at issue in William M. is Supreme William Court of remarkably purpose similar and effect challenge a facial Nevada considered Pennsylvania’s decertification statute. juvenile transfer and con- Nevada’s statute provide juveniles Both with an infringed upon juvenile’s cluded that it statutes rights opportunity to seek transfer from criminal self-incrimination. court, application of the law to the bur- tile trial court’s place prove the facts of this case otherwise. on the demon- proof

den of has met the criteria that strate he/she During psychological evalua Second, we obtain transfer.

necessary to tions, innocence and Appellant asserted his M. is the decision William find that refused to discuss the details of the crimes straightfor- and a evidences well-reasoned allegedly he committed. The trial court prin- of Fifth Amendment application ward such, testimony of the applies accepted this Common ciples. As Court O’Brien, Appel Dr. holding expert, M. to wealth’s that reasoning and William case. lant was not amenable to treatment and the facts of this could not be rehabilitated unless he took Here, in criminal Appellant was certified Relying for his actions. on responsibility charged with two counts of court and testimony, Dr. O’Brien’s the trial court Appellant sought homicide. decertification Appellant concluded that failed to establish juvenile system, to the and it and transfer that he was amenable to treatment be by prove, preponder- was his burden to not Appellant cause would “come forward evidence, ance of the that transfer to the for responsibility take his actions!.]” system pub- court best served T.C.O., 3/29/10, However, at 14. in order lic interest. actions, accept responsibility Ap to for his pellant necessarily would have to admit proof, Appellant of his burden of part As essence, guilt and incriminate himself. In that he had to establish was amenable to Appellant guilt because did not concede treatment, inquiry which included an as to fact, a matter of the trial court concluded Appellant whether be rehabilitat- “[could] Appellant that failed to establish that he prior expiration ed of the was amenable to treatment as a matter of jurisdiction.” court Pa.C.SA. court, therefore, law. The trial 6355(a)(4)(iii)(G) (G)(VII). interpret § Despite ed applied Pa.C.S.A. contrary, the trial court’s assertions to the 6355(a)(4)(iii)(G) § effectively require to the trial applied court Pa.C.S.A. (iii)(G) Appellant to admit and discuss his involve 6855(a)(4) § in a manner that re- constituting ment in the actions the crimi quired Appellant guilt to admit or ac- his M., nal offenses. Under William the trial cept responsibility to demonstrate that he application court’s of 42 capable was amenable to treatment and Pa.C.S.A. 6355(a)(4)(iii)(G) § violated Although rehabilitation. the trial court rights against by, claimed that it self-incrimination in es Ap- did not conclude that sence, pellant concluding Appellant “must confess in that had to order to be reha- instead, bilitated,” guilt prove amenability but was admit simply “evalu- to treat it, ating the evidence” before R.R. ment and obtain transfer to court.8 attempted support by jury may problems 8. The court trial its re- victed have for reha- quirement Appellant guilt prove purposes, that admit bilitation Dr. Heilbrun was clear amenability ground to treatment impossible on the that it was to calculate the effect of requirement during pre-trial stage. "[was] not statement of law such denial R.R. at result, put but applied [was] a matter of evidence that was the trial As the law 6355(a)(4)(iii)(G) by [Appellant] through forth solely § himself his own expert testimony witness.” R.R. at 36. This assertion Dr. O’Brien’s was supported by Although not the record. he Dr. not amenable to treatment because did not guilt accept responsibility Heilbrun testified on cross-examination that a admit for his guilt being defendant who denies con- actions. after or on the chapter the fact under this issue not altered conclusion is Our any proceeding. criminal 42 Pa.C.S.A. statutory provision, that a 6838(c)(1), any arguably render § could 6338(c)(1). § 42 Pa.C.S.A. made to Dr. statements assume, appeal, of this purposes For we subsequent juve- in a inadmissible O’Brien deciding, that 42 Pa. expressly without 42 Pa.C.S.A. proceeding. nile or criminal 6338(c)(1) would shield C.S.A. 6388(c)(1) not grant does “statements, confessions” admissions or the state- immunity use use/derivative Dr. Appellant that would have made to made in connection with ments he psychiatric O’Brien in connection with the Rather, provides it psychiatric interviews. (Defi- § 42 evaluation. See Pa.C.S.A. 6302 immunity. pure with basic or use nitions) in- (defining an “assessment” to such, statutory assuming provision, As this and evalu- “psychological psychiatric clude to decertification hear- applicable that it is ation”).9 Appel- is insufficient to overcome ings, compel rights lant’s Fifth Amendment and proper grant of immu With to incriminate himself. nity, a Fifth Amend witness/defendant’s 2008, § In 42 6338 was Pa.C.S.A. ment self-incrimination is privilege (c)(1). This amended to include subsection and the can displaced, witness/defendant. provides: subsection compelled testify. Bill Heard be See § 6338. Other basic ^{[*] [*]} rights ^[*] Leasing, there are three 129, 401 A.2d Inc. v. 834, types Fineberg, 836 of (1979). immunity. 265 In Pa.Super. general, Com 500, Swinehart, monwealth v. 541 Pa. 664 (c) AND INFORMA- STATEMENTS 957, (1995). A.2d 960 n. 5 TION OBTAINED DURING SCREENING OR ASSESSMENT.— immunity provides immunity only “Use” (1) statements, testimony actually given pursu- No admissions or confes- for the by incriminating compelling made informa- ant to order said testimo- sions immunity and use” ny. tion from a child in the course “Use derivative obtained enlarges scope grant is of the to cover screening of a or assessment any information or leads that were de- conjunction any pro- undertaken in with including, testimony given rived from the actual ceedings chapter, under this to, “Transactional” compulsion.... that which is court under but not limited ordered, immunity expansive, is the most as it in shall be admitted into evidence amnesty provides complete the issue of whether essence against the child on any for delinquent committed a act the witness transactions which the child language, juve By very 42 Pa.C.S.A. a case has been transferred to the 9. its after 6338(c)(1) Davis, applies § without limitation to nile court. v. 330 Commonwealth "any proceedings chapter,” specifi- 551, under this (1984), Pa.Super. 479 A.2d 1041 aff'd 63, Matters, cally Chapter and this Juvenile (1986). Therefore, Pa. 510 A.2d 722 510 language arguably broad could include trans- Davis, given reasoning 42 of Pa.C.S.A. proceedings § fer under 42 Pa.C.S.A. 6338(c)(1) inapplicable § could be to decerti- hand, this Court has held that On other event, hearings. this Court fication scope of the Juvenile Act is limited to issue; purposes need not resolve this jurisdiction, matters within the Juvenile Court will appeal, this we assume that Pa.C.S.A. thus, proceeding and to transfer from 6338(c)(1) Appellant’s § would immunize criminal court does not invoke Dr. O’Brien. statements to (or any provisions) the Juvenile Act of its until immunity solely of the com- with providing Appellant the course are revealed testimony. statements, admissions, for his confessions pelled incriminating information. Unlike Id. protections by afforded use use/derivative immunity grant “While 6338(c)(1) immunity, 42 Pa.C.S.A. does commensurate with protection must afford not shield from the introduction afforded the [Fifth Amendment] directly indirectly evidence not be broader.” it need Com privilege, derived from his statements and admis Webster, Pa.Super. monwealth v. Consequently, sions. (1983) (quoting Kastigar 470 A.2d 6338(c)(1) is not co-extensive with the States, U.S. United scope privilege, the Fifth Amendment (1972)). 32 L.Ed.2d Trans S.Ct. and it is insufficient to override immunity compel is sufficient to actional Fifth rights compel Ap testimony over a Fifth Amendment claim pellant testify against himself. See In it privilege pro because transcends A., 1124, 1134-35, Cal.App.4th re Mark 156 privilege. tection afforded Com Cal.Rptr.3d 68 106 4th (Cal.Ct.App. Dist. Webster, 164, Pa.Super. v. 323 monwealth 2007) (concluding pro that statute that (1983). 532, “[I]mmunity 535 470 A.2d “[t]estimony parent vides the of a ... shall from and derivative use is coextensive use any not be admissible as in evidence other scope privilege against with the of the self- proceeding” action or was not co-extensive incrimination, and therefore is suffi [also] with the Fifth Amendment because it compel testimony cient to over a claim of granted only pure immunity use and not privilege.” (quoting Kastigar, Id. 406 immunity); use In re De- 1653). 453, use/derivative U.S. 92 S.Ct. Pure or basic J.R.U.-S., 786, pendency Wash.App. 126 however, immunity, use is insufficient to (2005) (“[The 773, 110 P.3d 779 statute] privilege overbear the Fifth Amendment speaks only immunity. of ‘use’ It does not because it is not commensurate with purport provide immunity Goodwin, for evidence privilege. v. United States 470 (5th from Cir.1972). derived immunized statements. The 893, F.2d 904 provides comprehensive statute thus less Pure or basic immunity “pro use immunity Amendment.”); than the Fifth only tects the witness from the use of the Therefore, Gosling, 415 S.E.2d at 873. we specific testimony compelled from him un grant immunity conclude that the of use in grant immunity, der the but from not 6338(c)(1) § compel Pa.C.S.A. cannot evidence obtained as a result of such testi Appellant to incriminate himself at a de- Commonwealth, mony.” Gosling v. 14 Va. hearing, certification because the statutory (1992) App. 415 S.E.2d (quot provision does not immunize evidence that 449-50, ing Kastigar, 406 U.S. at 92 S.Ct. directly indirectly obtained from 1653). The acknowledged courts have Appellant’s statements and admissions. protected only by “that witnesses im use munity may pursued by be prosecutors decision, reaching recognize our we with compelled evidence derived from [] upheld courts have the Federal and and, testimony consequently, have it found Jersey New transfer against statutes Fifth inadequate to overcome an of the assertion due, challenges large part, in (cita [Fifth privilege.” Id. Amendment] provided to the fact that the pure statutes omitted). tions immunity juveniles use for self-incrimi-

Here, 6338(c)(1) § nating they grants during Pa.C.S.A. statements made Appellant with basic or pure immunity, proceedings. use transfer See United States (9th H., 1034, 1035-36 immunity. F.8d use The courts Mitchell H. v. Mitchell A.R., Cir.1999); 38 F.3d States and State in Interest A.L. failed to United (3d Cir.1994); recognize 703 and n. 5 State in the critical distinction between A.L., N.J.Super. thus, immunity, Interest use and derivative/use (1994). A.2d 814 we find these unpersuasive. decisions be above, explained pure immunity As use H., Appeals In Mitchell the Court of abridge juvenile’s a cannot Fifth Amend- the Ninth Circuit followed the Third Cir- rights against ment self-incrimination. cuit’s decision A.R. and concluded that a grant immunity, of use With evidence juvenile’s psychiatrist to a were statements directly indirectly from obtained protected by not the Fifth Amendment. juvenile’s statements would be admissible The Mitchell H. court found that in a later proceeding. juve- proceeding, context of transfer Consequently, agree we cannot that 42 psychiatric nile’s statements at a evalua- 6338(c)(l)’s grant of use im- limited, purpose”— tion “served neutral munity “ensures that a does not ie., to determine where the case should be himself,” unwittingly incriminate Mitchell provision tried —since a the transfer H., juvenile’s 182 F.3d at or that a statute, rendered the U.S.C.A. statements do not have legal “adverse juvenile’s statements inadmissible in a sub- A.L., consequences,” State in Interest sequent proceeding. 182 F.3d at 1035-36. By discussing 638 A.2d at 822-23. court, According “[b]y to the Mitchell H. of the alleged psychol- details crime with a limiting the use of statements made so ogist/psychiatrist, juvenile a may disclose during pre-hearing psychiatric evalua- by facts that were not discovered the Com- tion, U.S.C.A. ensures that [18 5032] monwealth, which, turn, in could lead the juvenile unwittingly does not incriminate inculpa- Commonwealth to new sources of himself.” Id. at 1036. new, tory filing evidence and also the of A.L., Likewise, in in State Interest of charges. additional “The essence of [the Jersey Appeals the New Court of conclud- requirement Fifth is the Amendment] im- statutory grant pure ed that a of use proposes the State which to convict and munity any was sufficient to remove Fifth punish produce an individual the evidence by Amendment concerns. As stated the him by independent labor of its assuming court: “Even that an admission officers, by simple, expedient not cruel in guilt implicitly required is order for Estelle, forcing lips.” it from his own to have a chance to remain in (citation 462, 451 U.S. at 101 S.Ct. 1866 court, family this admission has no adverse omitted). quotation internal marks legal consequences. juvenile’s The testi- mony fully by is immunized N.J.S.A. requisite grant In the absence of the any pur- 2A:4A-29. It is inadmissible ‘for least immunity, at use use/derivative pose any hearing in to determine delin- required Appellant trial court this case quency guilt.’ juvenile] or is not [The guilt responsibility admit or for accept penalized by choosing sense to ad- his actions in violation of Fifth hearing.” mit at a waiver 638 A.2d at rights against Amendment self-incrimina- 2A:4A-29). (quoting 822 N.J.S.A. tion. If remains in criminal court,

In life potential both Mitchell H. and State in Inter- he faces a sentence of A.L., for immunizing only imprisonment opportunity est statutes without the hand, provided with On the other if pure parole. defendant immunity, opposed prove can transfer use use/derivative interest, every encouragement or to waive public pressure he would is in the juvenile system treatment in the right, Specifically,

receive such a is invalid. there Obviously, Appellant of 21. age until the against encouraging no rule per is se strong incentive to invoke his statu- has a guilty pleas. squarely have held that a We and seek decertification and tory rights may encourage guilty plea State of- court. Given these transfer fering substantial benefits return for the circumstances, we conclude that 218-19, plea.” 439 U.S. at 99 S.Ct. 492. subject “penalty” to a sufficient to was short, States Supreme United Court testimony pur- coerce his compel or has taken the view that the benefits associ- Fifth Amendment. poses of the guilty plea plea bargain ated with a do speaks Amendment com “compel” The not a defendant to incriminate “[Fifth] Monia, States v. pulsion,” United U.S. himself because the defendant has the free 424, 427, (1943), 87 L.Ed. 63 S.Ct. accept choice to decide whether to Supreme States has United Court plea. enter a guarantee declared that the “constitutional however, cases, In another line of only compelled that the witness not be Supreme United States has also Court give self-incriminating testimony.” government may held that the not impose McKune, at U.S. S.Ct. 2017 “penalty” person asserting on a his Fifth original) (citing (emphasis United States See, privilege. e.g., Minneso 181, 188, v. Washington, 431 U.S. 97 S.Ct. 420, 434, ta v. Murphy, 465 U.S. 104 S.Ct. (1977)). 1814, 52 L.Ed.2d issue is (1984); 79 L.Ed.2d v. Lefkowitz objectives, whether the statute’s and the 801, 804-08, Cunningham, 431 U.S. consequences of a defendant’s failure to (1977); Turley, S.Ct. 53 L.Ed.2d 1 statements, provide self-incriminating 77-78, 316; 414 U.S. at 94 S.Ct. Gardner compulsion “create a encumbers Broderick, 392 U.S. 88 S.Ct. McKune, right.” constitutional 536 U.S. (U.S.1968). 20 L.Ed.2d 1082 These cases 35, 122 S.Ct. collectively conclude that sanctions such as cases, string In a “guilty plea” the contracts, job, loss state future con- Supreme United States Court has held state, tracting privileges political with the that government may offer substantial office, to run for office and revo- benefits a defendant in return for a probation, cation of imper- constitute an guilty plea without violating the Fifth “penalty” missible on the exercise of the See, e.g., Amendment. v. Corbitt New Jer- privilege against self-incrimination. The 212, sey, 492, 439 U.S. 99 S.Ct. 58 L.Ed.2d turn, penalty, threat of the in was enough (1978); 466 Hayes, Bordenkircher v. 434 of a force so as to compel the defendant to 663, U.S. 98 S.Ct. 54 L.Ed.2d 604 testify against himself.10 (1978); States, Brady v. United 397 U.S. (1970). cases, Relying “guilty on the plea” 90 some S.Ct. 25 L.Ed.2d 747 Corbitt, sentencing courts have found in the con- Supreme United States every Court stated: burden on text that a provide “[N]ot defendant’s refusal to exercise of a right, constitutional incriminating and not information to obtain a statu- Although Supreme by-case analysis Court has consis- to determine whether the tently potential held that the loss of livelihood pressure imposed rises to a level where it is compulsion, does rise to the level of the Court likely compel person a to be a witness clearly has not defined other classes of conse- McKune, against himself. See 536 U.S. Rather, quences compulsion. that constitute (O'Connor, J., concurring). S.Ct. traditionally engaged the Court has in a case- involving the same criminal conduct akin to a trial reduction is more tory sentence Appellant of whether was de- “penalty.” regardless On than to “denied benefit” guilty plea Conversely, certified. have concluded reasoning, some courts this cases, part as of a guilt a defendant admits implicat- is not Fifth Amendment that the government adjudication, final phase where de- sentencing in the ed circumstances) exceptional pre (barring in order must incriminate himself fendant prosecution further under the cluded from reduction. to receive the sentence plea agreement of the or Double terms Cruz, States v. example, For United generally See United Jeopardy clause. (2d Cir.1998), the Court 156 F.3d (2d Olmeda, F.3d 271 States v. Cir. that relieved sentencing provision upheld Johnson, 2006); States v. 169 F.3d United of a mandato application a defendant from (8th Cir.1999); Bag States v. United truthfully minimum if the defendant ry Cir.1990). (11th gett, 901 F.2d 1546 government with all evidence provided the offense(s) trial in this case concerning the Because the re- information quired incriminating Ap- statements from he convicted. The court for which was pellant prior proceeding the de to trial in a confronting that “the choice held adjudication guilt, not act as a final gives compulsion rise to no more does fendant typical Appellant sufficiently bar was not immu- present plea than that statements, choice, unlike the choice in nized from such we conclude gain .... [T]his cases, likely guilty plea procedurally to exert that the cases are penalty is [not] upon inapposite. requirement an individual as to The trial court’s pressure such making guilt accept him from a free and ration concede or re- disable Id.; for his actions to receive sponsibility al choice.” see States v. United (9th Washman, juvenile system be Cir. transfer to the cannot F.3d 1997); Arrington, perceived simply denying Appellant 73 F.3d United States (7th Cir.1996). 144, 149 statutory benefit or reward —at least not yet when has to be convicted of Here, requirement the trial court’s alleged related to his criminal any offense guilt accept responsi- admit subject prosecu- conduct and remains bility analogous for his actions is not If incriminating Ap- tion for statements. sentencing situations guilty plea and alle- pellant admitted on the factual relinquishes where a defendant Fifth of the gations and discussed the details rights exchange for the crime(s), alleged only could not lenient sentence. prospect of more Un- against the case him for the advance “guilty plea” like the so-called cases and and not charged crimes in which he was progeny, Appellant’s their admissions convicted, also, subject but could himself solely to seek transfer to would be made with which liability to criminal for crimes pre-adjudicatory phase court—a charged. exposure This to he was not proceedings. Appellant’s of incrimina- the alone, culpability, broad criminal distin- ting statements would not be volunteered from like guishes this case those Cruz pursuit sentencing leniency following in reasoning guilty of the applied have guilty plea sentencing or a “reward” sentencing stage to the for plea cases Moreover, a conviction. in con- following and their related conduct after the crimes Fifth Amend- Appellant’s travention already was convicted. defendant ment could la- rights, Commonwealth therefore, condition, co- Appellant’s ter evidence derived from The trial court’s use pos- ercively sought grant Appellant in a to pre-trial admissions and statements (2d Cir.1990) (interpreting transfer in return for a sentenc- sibility of As incriminating provided statements. for a ing provision reduction sentence) (“So exchange, the Commonwealth part long as the defendant’s against Appel its case strengthen could against statements are not immunized use lant, guaran while would not be subsequent prosecutions, criminal juvenile system. Giv teed transfer requiring accept effect of a defendant to case, the profound en the facts of this for crimes other than those responsibility reasonably transfer are benefits of pled guilty to which he or of which he has compel Appellant to to waive his sufficient guilty penalize been found is to him for rights testify and Fifth Amendment incriminate runs refusing to himself. This is, gross dispari himself. That amendment.”), afoul of the fifth statute ty potential between the sentence holding to to as stated modified conform operate criminal and divisions (2d Austin, in United States v. 17 F.3d 27 pressure on to “fore exert such Cir.1994); Piper, States v. 918 F.2d United a free choice to remain silent[ ] close (9th Cir.1990) (same); United testimony.” compel incriminating ... therefore Perez-Franco, v. States 873 F.2d er, U.S. S.Ct. Garn (1st Cir.1989) (same); Bertrand v. United 1178; Kincheloe, 871 F.2d Robtoy cf. (5th Cir.1972) States, 901, 902 467 F.2d (1989) (stating that “the differ resentencing due (ordering to the trial ence between life and with sentences with judge’s questioning of the defendant be- possibility parole” “significant out is a “the trial judge’s ques- cause effect of the disparity,” person and that a is “substan tioning impose an was unconstitutional tially benefited” when his sentence is petitioner’s condition on the Fifth Amend- changed possibility life without from rights: go ment he could into the details of parole possibility to life with of parole). the other offense which he did not [to ... plead guilty] or he could exercise his circumstances, light of these be long silent and receive a sen- require Appellant trial court could not tence.”); Corbin, but see United States v. accept responsibility admit (7th Cir.1993) (collect- (or 998 F.2d crimes to which he was not convicted ing sentencing conceded in a cases that hold to the con- guilty plea) guise under the trary).11 Therefore, “penalty” profoundly of a increased we Ap- conclude that sentence the criminal pellant “compelled” division. was to incriminate Cf. Oliveras, United States v. 905 F.2d himself as that term exists in the text of Appeals 11. The proceedings, principle Federal Circuit Court of are we find the of law es- split sentencing over the issue of whether a poused companions in Oliveras and its to be provision, permits which on face its a sen- persuasive analogous much more than tence reduction if a defendant crimi- Moreover, admits the cases cited in Corbin. in the offense(s) beyond particular nal conduct cases, guilty plea progeny the minor sentenc- pled guilty, to which he has violates or bur- ing reductions that the defendant would have rights against dens the Fifth Amendment self- pale if received he incriminated himself in Corbin, incrimination. 998 F.2d at 1388-90. comparison posed Appellant: to the choice date, Supreme To the United States Court has possibly juve- incriminate himself and receive specific not addressed this issue. See Mitchell 21, age nile treatment until the of or not States, 314, 330, v. United 526 U.S. 119 S.Ct. potential and face incriminate himself a life 1307, (1999). 143 L.Ed.2d 424 opportunity parole sentence without the for above, such, legal explained precept criminal court. As the As because of transfer proceedings pre-adjudicatory companions persua- are Oliveras and its are not more guilty akin- plea sentencing cases or sive on this basis as well.

505 right, waiving a fundamental constitutional Fifth Amendment.12 the a for imposes penalty asserting harsher case, the trial court essence In this Hynes v. To it, may not be sustained.” to waive his Fifth compelled Appellant 618, 177, 92 N.Y.2d 684 N.Y.S.2d 706 mei that in no set rights, ensuring Amendment (1998) (citation 1201, 1204 omitted); N.E.2d tried could be of circumstances 357, Hayes, Bordenkircher v. see U.S. system if he invoked those (1978). 363, 663, 98 S.Ct. 54 L.Ed.2d 604 rights. interpretation The trial court’s In a chills the determining whether statute 6S55(a)(4)(iii)(G) § encour- 42 Pa.C.S.A. right exercise of a constitutional so as to to tender an admission of ages unconstitutional, question it render “[t]he but, guilt, significantly, Commonwealth chilling effect is ‘inci is not whether juve- can use evidence derived from intentional; ques dental’ rather than nile’s admissions and statements secure unnecessary tion is whether th[e] effect or an ad- subsequent criminal conviction v. United States and therefore excessive.” vein, In judication delinquency. this Jackson, 570, 582, 390 U.S. 88 S.Ct. application trial court’s (1968).13 A L.Ed.2d 138 court must 6355(a)(4)(iii)(G) impermis- also had the challenged “balance the need for the stat “chilling” the exercise of sible effect of against chilling ute its effect on the exer rights. Fifth party’s rights.” cise of a constitutional York, v. New Winston [statutory] procedure “[A] 759 F.2d (2d Cir.1985). a reward for which offers an individual (‘‘In holdings appeal) finding juvenile’s 12. in Oliveras and its an Besides refusal followers, analogous support we justifying find further to admit to the offenses awas factor for conclusion in the case law from other custody our pending appeal, his continued jurisdictions penalty that have addressed the exposed juvenile pen- trial court to the classic concept patterns. Gener- different factual alty choosing privi- situation of between ally, may these cases hold that a defendant lege prolonged self-incrimination and required not be to incriminate himself in or- confinement.”). right by der to receive the benefit of a secured Here, Appellant's right by secured law was Brown, law. See State v. 286 Kan. least, (or statutory his entitlement to obtain (2008) (concluding agen- P.3d 1205 that state for) eligible be transfer to the division cy require could not a defendant to make having without to incriminate himself. incriminating custody statements to re-obtain of his abused child who had been committed Jackson, Supreme Court held that control; liberty to state the defendant had a statute, kidnapping the federal 18 U.S.C.A. child, penalty interest in his and the of non- was Under that unconstitutional. coercing capable reunification was incrimi- statute, jury could recommend the death nating testimony); Pentlarge Murphy, penalty guilty, if it found a defendant but the (D.Mass.2008) F.Supp.2d (concluding impose penalty statute did not the death person civilly penalized that a committed was pleaded guilty those who or who were tried person under the Fifth Amendment where the judge. before a The Court the death found incriminating had to make statements in or penalty provision unconstitutional because it der to receive the benefit of rehabilitation discouraged seeking jury defendants from treatment); Jersey Dept. Bender v. New Cor imposed impermissi- trial therefore "an rections, N.J.Super. 812 A.2d 1154 ble burden” on defendants who exercised (2003) (concluding that inmate could not be guilty plead their constitutional to not penalized good with the denial of time credits by jury. and demand a trial 390 U.S. at conferred statute if the inmate declined to that the 88 S.Ct. 1209. The Court concluded therapy); incriminate himself in In re Lineber 229, penalty provision “needlessly penal- ry, death (N.C.Ct.App.2002) S.E.2d right.” (addressing statutory presumption juve a that a the assertion of constitutional ize[d] custody pending nile be from secure Id. at 88 S.Ct. 1209. released A.C., reasons, For these (emphasis original). 27 N.Y.2d People v. Michael (1970), concluded that the court Michael AC

313 N.Y.S.2d 261 N.E.2d 620 of provisions of the Criminal Code Appeals14 the New York of struck Court were unconstitutional because Procedure of the of provisions down Code Criminal they needlessly encouraged a defendant to to required a defendant Procedure a trial exchange rights jury his to for to receive the jury waive a trial order a youthful offender treatment and lesser youthful of offender treatment. benefit sentence. signed the waiver and was defendant court, in criminal albeit in a section tried Here, by finding Appellant had to Part. designated as Youth Because accept responsibility admit for his right jury waived his to a defendant proving to that he actions as condition trial, considered a defendant was treatment, to the trial court was amenable offender, thus, youthful guar- he was placed Appellant in a situation that need- prison anteed a shorter sentence under lessly encouraged Appellant to sacrifice his statute. If the defendant did not consent rights against Fifth Amendment self-in- trial, non-jury to a he would not have crimination. As a result of the choice qualified prosecution youthful for as a of- court, posed by the trial could and, fender consequently, would have been possibly either incriminate re- himself exposed considerably longer period to a of juvenile system ceive transfer to the or not imprisonment. face trial in incriminate himself and system. criminal In order for to Jackson, Relying on the New York obtain transfer to court and re- of Appeals Court concluded that the stat- ceive a lesser sentence for the same of- impermissibly ute chilled defendant’s fenses, Appellant, similar to the defendant Sixth right jury to a trial. A.C., forego in Michael have to would his defendant, “Although any including a constitutional rights. Consequently, offender, youthful is free to consent to a trial application court’s Pa.C.S.A. if, trial jury reality, without a in fact and 6355(a)(4)(iii)(G) encourages prefers he to be so tried —and knowingly exchange rights against self-in- his/her waives his constitutional does —this crimination for the possibility receiving may not mean that a State demand that juvenile system transfer and a less- such a given consent be an absolute er sentence. precondition affording him the benefits of youthful offender treatment.” Although the legit- Commonwealth has a N.Y.S.2d 261 N.E.2d at 624. “For the determining imate interest whether a evil in the statute [ ] is not that it necessar- defendant is amenable to treatment in the ily jury coerces ... simply waivers but juvenile system, it was not necessary, as a it needlessly encourages them. A construction, statutory matter of Ap- procedure inherently need not be coercive pellant incriminating to make an statement in order that it be held to an impose prove that he capable was rehabilita- impermissible upon burden the assertion By language, tion. plain its Id., 6355(a)(4)(iii)(G) (G)(VII) right.” constitutional do not N.Y.S.2d 261 N.E.2d (quoting at 625 that guilt, accept mandate admit Jackson, 1209) 390 U.S. at responsibility S.Ct. or discuss the details of the Appeals The Court of of New York is the York. highest appellate court in the state New records, Department of Social charged crimes. Services underlying facts records, testimony by Services and statutory provision, interpreting a similar officer, Department of Social probation explained: Jersey Superior the New Court employees, or Youth Services Services requires only statute [T]he [transfer] teachers, friends, family members. prove, by whatever juvenile that chosen, ‘probability of reha- means at 1331. 606 N.E.2d nineteen, utilizing age bilitation’ before court, therefore, improperly The trial available to the court.... the resources 6355(a)(4)(iii)(G) § applied 42 Pa.C.S.A. in all cases a are not convinced that We way juvenile that conditioned transfer to proof the burden of juvenile can meet waiver of his Fifth upon Appellant’s wrongdoing. The only by admitting rights against Amendment self-incrimina- case determine facts of each particular tion, though necessary even it was not Generaliza- proofs. nature of the according plain language of the stat- useful. Evi- particularly words, tions are not objective ute. In other of 42 6355(a)(4)(iii)(G) demonstrating probability dence § Pa.C.S.A. deter- —to by a may presented be rehabilitation mine is amenable whether to necessarily without juvenile or witnesses accomplished treatment —can be without There could be testimo- admitting guilt. to requiring Appellant provide self-incrimi- that the has the ny experts nating Consequently, information. at the least, ability comply very inclination to with the the trial court and construed 6355(a)(4)(iii)(G) so, law, needlessly probably wishes to do and will Pa.C.S.A. make a guided through encouraging Appellant if self-in- do so in the future in order to criminating of education and statement be con- particular program doing, sidered for decertification. In so ex- counseling; testimony by psychiatric ¿/'the excessively the trial court burdened or perts guilty that even Fifth “chilled” charged, is not offenses conclude, rights. accordingly, We that the likely repeat the aberrant behavior trial court committed an error of law when teachers, ...; counsel- testimony and 6355(a)(4)(iii)(G) it applied ors, clergy has only compelled Ap- in a manner that not maturity character and displayed good pellant guilt, Ap- to admit but also chilled likely do so in the past and will pellant’s rights against self-incrimination. future, training given proper guid- if ance. Commonwealth, nonetheless, urges A.L., the trial court’s N.J.Super. State in Interest this Court affirm order (1994) (emphasis variety in for a of reasons. 638 A.2d original). brief, In its the Commonwealth first

Likewise, ob- Wayne the court W. out that in v. Arch points Commonwealth (en served: er, (Pa.Super.1998) 722 A.2d banc), probative There are other sources of and Commonwealth v. Leather Pa.Super. ... 568 A.2d bearing bury, evidence available on [the (1990), treatment, 1315-16 this Court concluded that a juvenile’s] amenability implicating without trial court could consider a defendant’s may be introduced determining lack of remorse in whether a privileges against self-incrimination. include, These but are not limited to defendant is amenable to treatment. We treatment, Leatherbury past records of school do not find Archer or instruc records, controlling a Fifth Amend- probation Department of Youth tive or because in presented misplaced Appellant’s was not those because claim does ment claim cases, Leatherbury in no and Archer and not involve of presumption the innocence. rights against juvenile’s Rather, a way addressed Appellant’s argument the core of self-incrimination, self-incrimination. compelled is a matter entirely from the of presumption divorced that also contends The Commonwealth innocence. The Commonwealth’s conten rights Fifth Amendment were Appellant’s mark, tion therefore misses the and cannot presumption because the of not violated upon serve as a basis which to affirm the applicable innocence is not decertifica- trial court’s order. may hearings, and “the trial court tion committed assume Finally, argument, at oral the Common- alleged purposes for of the [decer- offense argued Appellant wealth waived his proceeding.” Commonwealth’s tification] rights against Fifth Amendment self-in- alia, (citing, Brief at 20 inter United Appellant crimination because failed to as- LWO, 160 F.3d States Juvenile it the psychiatric sert evaluation with (“A (8th Cir.1998)) n. 1 district court Dr. O’Brien. The Commonwealth also may alleged assume the truth of the of- Appellant contended that waived his Fifth hearing”). fense at a transfer rights against Amendment self-incrimina- Consistent with our discussion tion because hired Dr. Heilbrun permitting psychiatrist presume above to conduct a psychological evaluation. We in juvenile’s guilt determining amenabili find no merit the Commonwealth’s con- treatment, ty pur we conclude that for tentions.

poses analyzing factors First, Appellant did not incrimi 6355(a)(4)(iii), (but § may a trial court nate himself his interview Dr. with not) guilty need assume is O’Brien, thus, unnecessary it was for alleged and committed the acts constitut him to invoke his Fifth rights Nonetheless, ing the offense. there is a at that time. It was not until the trial major difference between a trial court as court’s decision and order that suming that a guilty is and re Fifth Amendment rights placed were into quiring to openly guilt. admit jeopardy, when the penalized trial court necessary justification The former is a (after-the-fact) failing to ad 6355(a)(4)(iii)(A)-( address the factors in guilt accept mit or responsibility for his E),15 see Miguel, United States v. provide actions and (9th incriminating informa Cir.2003), F.3d 1003 n. 23 while tion. Since the trial court’s decision sub the latter juvenile’s violation of the jected Appellant rights “penalty Fifth Amendment classic against self-in situation,” Appellant’s crimination if used to any privilege against establish factor. short, argument the Commonwealth’s self-incrimination self-executing, became presumption focuses on the formally innocence need not have as Amendment, inherent in the Fifth and is privilege prior serted the at a time to claim (A) course, recapitulate, juvenile, 15. To these weight factors are: can contest the victims; impact of the offense of the victim or reliability of the Commonwealth's evi- (B) impact the (C) of the offense on the communi- dence of his at the decertification hear- ty; safety public the threat to the of the ing attempt in an to demonstrate a lesser state child; (D) posed by individual culpability under factors alleg- nature and circumstances of the offense Case, 6355(a)(4)(iii)(A)-(E). See In re Sealed child; edly (E) degree committed (D.C.Cir.1990). 893 F.2d culpability. the child's Id. W., Brown, Wayne 182 P.3d at Under Davis and when a See protections. its (discussing Murphy juvenile psychiatric and admits evidence on his 1210-11 Lefkow- itz). behalf, juvenile a court can order the to psychiatric submit to a evaluation with the Second, did not waive his Appellant psychiatrist violating state’s without by virtue rights against self-incrimination juvenile’s right Fifth Amendment to re- he Dr. Heilbrun to of the fact that hired main a in Although juvenile, silent. a evaluation. We psychological conduct circumstances, proper may compelled be to in and are aware that the courts Davis speak psychiatrist to a state and answer juvenile pres- held that once a Wayne W. juvenile a questions, compelled cannot be psychiatric testimony on expert ents his/ guilt or accept responsibility to admit behalf, juvenile the court can order the her juvenile in when asserts his innocence by psychia- to submit to an examination a response questions. Christopher to the Cf. by violating trist hired the state "without P., (recognizing 816 P.2d at 487-89 that a juvenile’s rights. Fifth Amendment compel juvenile undergo court can Davis, W., 1136; Wayne 998 P.2d at See psychiatric evaluation concluding but at 1332. The rationale behind 606 N.E.2d in juvenile no circumstances can the be juvenile these cases is that because the compelled to discuss the alleged offenses present expert testimony, ju- chose to psychiatrist). exactly with That is to have his Fifth venile is deemed waived in happened what this case: as- silent, right to remain and O’Brien, serted his innocence before Dr. juvenile that the made to statements accepting responsibility and instead of or into psychiatrist the state’s is admissible admitting guilt, Appellant answered the at evidence transfer/decertification questions non-incriminating in a manner. id. hearing. See Therefore, Wayne pro- Davis and areW. conclude, however, that Davis and We eedurally inapposite, do cre- and not lend Wayne distinguishable are on their W. position. dence to the Commonwealth’s facts. above, explained As the trial court’s subse- quent application order and of the law Here, Appellant willingly submitted to subjected Appellant penalty to the classic by an examination the Commonwealth’s situation, Appellant properly pre- and expert, Dr. O’Brien. did not served his Fifth Amendment claim. make to Dr. incriminating statements O’Brien, consequently, Dr. O’Brien’s We, accordingly, find no merit testimony hearing the decertification arguments. Commonwealth’s relay any incriminating did not statements conclusion, law, Pennsylvania under Appellant during the evaluation. made the issue of whether a is amenable Wayne While the courts in Davis and W. to treatment is a factor that must be con- that a juvenile’s concluded affirmative by the trial sidered court. As noted were psychiatrist statements state “[wjhen above, have his seeks to because the waived admissible his/ case transferred from the criminal division remain her Fifth Amendment si- division, contrast, he must show that lent, here, the trial court fo- he to treat- need of and amenable provide cused on failure ment, supervision or rehabilitation incriminating statements to Dr. O’Brien to Johnson, juvenile system.” 669 A.2d at penalize Appellant’s Fifth Amendment rights against self-incrimination.

Here, judge permissible trial considered other Appel- the trial court found well); amenability lant failed to establish to factors as also Commonwealth cf. Goldhammer, on the fact that treatment based 512 Pa. 517 A.2d (1986) accept responsibility (stating did not admit that where this 1283-84 trial reliance multiple for his actions. The court’s conviction in a Court vacates a Ap- factor violated impermissible appeal, vacating on this count the conviction rights, upsets sentencing Fifth Amendment the trial court’s overall pellant’s proceed- scheme, tainted the entire decertification this must remand for re- Court ings. sentencing sentencing because lies -within court). the sole discretion of the trial inappropriate, of this un- the absence consideration, reasons, it quite pos- constitutional is For the above-stated we vacaté trial court could have ar- sible that the trial court’s order for a and remand Further, conclusion rived at a different and found hearing. new decertification we proving met his burden of Appellant it judge leave to the trial to determine treatment. amenability During whether, remand, the de- upon de- prospective proceeding, Appellant certification ad- hearing certification an- shall be heard duced evidence favorable to his cause on judge. other other listed in 42 factors Order vacated. Case remanded. Juris- 6355(a)(4)(iii), and we are unable to de- relinquished. diction termine from the record before us the trial weight given by court to this Judge a Dissenting COLVILLE files only other explicitly evidence. factor Opinion. trial upon by relied court to reach its DISSENTING OPINION BY decision the serious nature was of the of- COLVILLE, J.: However, fense. specu- this Court cannot weight late as to the the trial Despite Appellant’s right court would the fact that have afforded this factor had it arguably found that self-incrimination was in Appellant was amenable to treatment. jeopardy during before and the transfer hearing, timely he failed to assert It is clear from our review of the record right or objection citing otherwise raise an pivotal component that a of the trial view, right. in Consequently, my Ap- analysis court’s rested on an unconstitu- pellant has waived the Fifth Amendment tional basis. Because the decertification review, he issues wishes this Court issue is for the trial court to decide which are the sole presently issues before instance, discretion, first within its we va- I, therefore, us. dissent. denying cate the order decertification and remand for a new decertification hearing. hearing, At the transfer Appellant’s ex- Bethea, witness, Heilbrun, that, Commonwealth v. pert Pa. Dr. testified Cf. (1977) 379 A.2d 106-07 (concluding during Appellant, his examination of he that a sentence must be vacated “it Appellant where asked whether he shot Kenzie reasonably appears from the record that Houk. Dr. Heilbrun Appellant stated that the trial court relied in whole in part or claimed he did not commit shooting. upon factor” in im- questioned [an unconstitutional] When the Commonwealth Dr. sentence, posing a harsher and the regarding harsher Heilbrun the effect Appellant’s sentence penalty amounted to a for the plan denial would have on the treatment recidivism, exercise of a right; constitutional the sen- possibility Dr. Heilbrun tence that, must be vacated even though ultimately concluded if is deny culpa- the time of the offense to result such guilty and continues found type a deviant of behavior. for treat- bility, problem “then that’s 01/29/10, N.T., Appellant’s at 40. ment.” 03/12/10, N.T., at 29-30. object to the Common- counsel did not testimony, in Dr. O’Brien’s when Later or to Dr. Heilbrun’s questions

wealth’s amenabili- Appellant’s he was asked about answers. treatment, Dr. O’Brien made the ty to following conclusions: called an ex- also

The Commonwealth said, Well, again, my opinion as I it’s hearing, Dr. O’Brien. pert witness that he doesn’t have an illness that he Dr. O’Brien testified that conducted strictly to be treated in a mental needs evaluation of psychiatric sense, require illness so he doesn’t treat- Accord- counsel. presence evaluation, amenability ment of that sort. His O’Brien, during that ing to Dr. rehabilitation, my opinion, very lim- re- whether he was he asked ited because of his—the various differ- Appellant sponsible shooting, for the about, tendency ent I talked factors further testified that no. Dr. O’Brien said minimize, deny, to to to shift the blame to discuss the factual Appellant’s refusal basically posture that he’s shooting is con- allegations regarding the— inin connection with this case and the taking of not re- history sistent with his actually incentive to ever lack of come The wrongdoings. for his doc- sponsibility he support gets, forward. more opined, tor actually, likely the less he is to come discussing the factual His avoidance of forward, sort of—it because it makes it for his detention allegations responsible impossible even more for him to come appeared with what in his was consistent know, actually, you say, forward and I Thomas and also record from the Center sorry. just did this and I’m And so I from his records in terms of his school any don’t see—I don’t see indication taking responsibility things not for that outcome, likely you that that’s a and if caught doing. he was outcome, you don’t have that then ha- that consistent and that was And so was step ven’t taken the first toward rehabil- something was notewor- that was—that itation. me, it a consis- thy only to that was Id. at 36-37. tency, to avoid or that he is—he tends nothing sug- which There is of record by avoiding taking responsibility, reacts gests Appellant’s objected counsel to which, my opinion, complicates the— to any questions posed Appel- Dr. O’Brien rehabilitation, because— process of during lant the doctor’s evaluation of Ap- I in this— agree with Dr. Heilbrun Furthermore, Appellant’s pellant. counsel in order to be rehabilitated as a objected never on Fifth Amendment crime, result of a convictionfor a serious any of grounds question to asked Dr. you responsibility your have to take any provided. O’Brien or to answer he you behavior and then have to allow yourself process of go through that, to The certified record demonstrates analyzing professional with a the under- present, the with counsel Commonwealth’s pinnings your to behavior and under- expert directly Appellant witness asked standing underpinnings those and un- whether he committed the crimes for derstanding wrong charged. what went or what The record further which he was hearing fraught in the various was with happened that resulted evinces that unwillingness to array things happening Appellant’s that were references to very system jus- of our concept the crime and the committing admit to on his amena- unwillingness tice. effect of this Yet, during at no time treatment. bility to Id. at 13. hearing or the transfer his examinations Contrary Appellant’s argument, a le his constitutional assert did gal basis did exist for the trial court to self-incrimination, nor did testimony regard consider Dr. O’Brien’s object, citing a viola- counsel Appellant’s ing history being unwilling Appellant’s right against self-in- tion of responsibility wrongdoings to take for his crimination, any questions posed by unwillingness and the effect that has on provided by or answers Commonwealth Appellant’s amenability to treatment. Instead, Appellant waited until

witnesses. stated, Simply testimony Dr. O’Brien’s post-hearing support he filed his brief this regard unobjected-to was evidence petition decertify his into the inject record. If believed Dr. regarding right against his matter issues testimony O’Brien’s was offensive to his self-incrimination. self-incrimination, right against then Ap brief, Appellant In that maintained that pellant lodged timely should have ob concerning Ap- Dr. conclusions O’Brien’s jection right against or asserted his self- overriding were “based on an con- pellant neither, incrimination. Because he did cern and belief unless the concerning waived issues counseled, treated, confesses, he cannot be right. this See Commonwealth v. Baum Brief in Support Ap- or rehabilitated.” hammers, 59, 599 Pa. 960 A.2d 73 03/19/10, Decertify, Petition to at pellant’s (2008) (“It is axiomatic that issues are stated, 11. later Appellant “There is no preserved objections when are made [cjourt legal basis for the to consider Dr. offense.”). timely to the error or assumption O’Brien’s that unless a child confesses, juvenile justice system is Citing to a Supreme case from the Court appropriate system not an for the case.” Kansas, Brown, State v. 286 Kan. asserted, at Appellant baldly Id. then (2008), 182 P.3d 1205 Majority con- The Fifth Amendment to the United Appellant cludes that did not waive his Constitution, applicable States made to Fifth Majority issues. The through the states the Fourteenth opines, Amendment, right. is a fundamental To subjected Since the trial court’s decision conclude that unless a confess- “penalty to the classic situa- es, adult, he be must treated as an tion,” Appellant’s privilege against self- places impossible juve- an burden on a self-executing, incrimination became and nile, counsel, his adult advising not formally need have assert- case, the child. In this prosecution privilege prior ed the at a time to claim [cjourt

would have this believe that a protection. its not, juvenile, whether innocent or must Brown, Majority Opinion (citing at 508-09 charged if confess with a serious crime 1210-11). 182 P.3d at I am unable to subjected such as murder or be to adult agree opinion. with this punishment, imprison- this case life matter, an initial I disagree As with the possibility parole. ment without the A Majority conclusion of this manner in which the nature is a clear characteriz- specifi- violation of the Fifth es the trial court’s decision. More Amendment to the Constitution, cally, United States I with agree Majority’s Article 1 9 cannot Constitution, of the Pennsylvania conclusion that the trial required court

513 standard, Using to admit that he committed the Brown as the I first note to demonstrate that he is shooting order general rule is that an individu- “[t]he capable of re- amenable to treatment affirmatively al must assert his or her The essence of the trial habilitation. right against self-incrimination or else regarding Appel- court’s determination law will consider the individual to have to treatment amenability lant’s is evi- Brown, right.” waived the at 182 P.3d following passage from the denced (citing Murphy, Minnesota v. opinion: court’s U.S. S.Ct. 79 L.Ed.2d Thus, expert from both witnesses we (1984)). exceptions gen- “Some to this agreement find on the conclusion that exist, eral rule and there are situations requires taking responsi- rehabilitation where the right against self-incrimination ” offense; and, bility underlying for the Brown, is ‘self-executing.’ 182 P.3d at persuasive reasoning from Com- [the 429-34, (citing Murphy, U.S. expert] taking respon- monwealth’s 1136). 104 S.Ct. against self- occur, unlikely sibility making thus incrimination may “self-executing” be prospects of rehabilitation within the penalty when a “classic situation” has oc- jurisdiction confines of Brown, curred. 182 P.3d at 1210. likely to be unsuccessful. situation,” penalty In a “classic the State 03/29/10, Trial Opinion, Court at 15. person threatens a punishment with if that view, In my this statement does not person asserts desires to invoke his or that the trial court applied demonstrate right against her self-incrimination. See 6355(a)(4)(iii)(G) way in a Warren, (3rd U.S. v. 338 F.3d Appellant’s right against violated self-in- Cir.2003) (“The Supreme has Court decid- Instead, assessing Appel- crimination. string ed a ‘penalty so-called cases that treatment, amenability lant’s the court government hold that the may impose not (1) as matters of fact determined that: penalty person asserting on a for his or taking responsibility for an underlying of- Brown, her Fifth Amendment privilege.”); fense of paramount importance is to treat- (“In 182 P.3d at 1210 each of the so-called (2) rehabilitation; ment and Appellant has cases, ‘penalty’ only the State not com- yet responsibility shooting; to take for the (3) pelled an individual to appear testify, and given Appellant’s history failing sought but also to induce him to responsibility forgo to take his wrongdoings, for treatment and rehabilitation were not like- Fifth Amendment privilege by threatening ly to in Appellant’s succeed ease. These impose to economic or other sanctions ‘ca- findings supported by of fact are the rec- pable forcing the self-incrimination above, ord. As I noted Dr. Heilbrun testi- ”) which the Amendment forbids.’ (quoting Appellant’s fied that continued denial of 1136). Murphy, 465 at U.S. S.Ct. culpability shooting for the if he is found If the threatened person succumbs to the guilty problem would be a for treatment. himself, pressure by State’s incriminating Furthermore, Dr. O’Brien testified that “self-executing” then the is insomuch history had a taking not re- privilege against as “the constitutional self- which, sponsibility wrongdoings, for his ac- may incrimination be asserted at a later doctor, cording to the limits his amenabili- suppress time to the statements made un- ty to treatment. Brown, compulsion.” der State 182 P.3d Evans,

Lastly, I am (citing unable to conclude that this State v. Ohio (2001)). presents penalty App.3d case a “classic situation.” 760 N.E.2d 909 my to attention Here, punish Ap- brought not This case has the trial court did important complex questions stating a desire to invoking or pellant the Fifth Amendment interplay between right against self-incrimination. invoke his and trans- and the decertification above, fact, there is no as I discussed instance, the transfer process. fer For ever evidence of record process decertification seems to bene- Instead, con- right. invoke that sought to juvenile’s willingness fit from a to submit testimony, Dr. O’Brien’s sistent with evaluation. psychological psychiatric denial trial court considered Yet, it is unclear to me whether a shooting weigh negatively process is cooperates who with such amenability to treatment be- against his adequate protection with of the provided history deflecting has a cause juvenile’s right against self- fundamental wrongdoings. Appel- for his responsibility incrimination. the answer to this While penalty threatened if lant was never with question undoubtedly important, neither right against to assert his self- he chose question prompt that would such an Moreover, Appellant incrimination. has any questions Appellant pres- answer nor right against never asserted his self-in- appeal properly ents on are before this attempt suppress in an crimination Court. compul- he made under statements State reasons, For these I would affirm the sion. trial court’s order. Appellant, When Dr. O’Brien evaluated Appellant’s counsel was armed with the

knowledge testify the doctor would

for the nonethe- Commonwealth. Counsel directly ques-

less allowed Dr. O’Brien to Appellant regarding

tion his in the

shooting Any questions of Ms. Houk. Dr. Appellant regarding O’Brien asked his ac- Bryan SILVER, Cohen, V. Jordan S. tions on day shooting of the had the Minor, Brad and Marita Cohen potential incriminating to elicit answers Cohen, Appellants Yet, from Appellant. nothing of record suggested demonstrates that counsel THOMPSON, Appellee. Sandra Appellant that he right against assert his Moreover, self-incrimination. counsel nev- Superior Pennsylvania. Court of objected er hearing grounds at the on the Argued Feb. 2011. violated, testimony poten- or had the violate, tial to right against May Filed self-incrimination. The before us is record why

silent as to counsel chose to allow this record; only

evidence into the we pre- can

sume counsel believed this evidence would

help carry Appellant’s burden of proof. event, this silence has me to con- led

clude that preserve failed to

Fifth Amendment presents issues he

this Court.

Case Details

Case Name: Commonwealth v. Brown

Court Name: Superior Court of Pennsylvania

Date Published: Mar 11, 2011

Citation: 26 A.3d 485

Docket Number: 1159 WDA 2010

Court Abbreviation: Pa. Super. Ct.