Commonwealth v. Taylor, N., Aplt.Commonwealth v. Taylor, N., Aplt.
JUSTICE WECHT
This appeal asks whether a minor‘s Fifth Amendment privilege against compulsory self-incrimination was violated when a juvenile court granted the Commonwealth‘s request to have a delinquency matter transferred to an adult court for criminal prosecution, based in part upon the minor‘s decision not to admit culpability to the delinquent acts alleged. We hold that it was.
I.
The events that formed the basis of Nazeer Taylor‘s prosecution occurred between July 2012 and August 2013, when he was fifteen years old. In March 2014, the Commonwealth filed a delinquency petition alleging that Taylor committed numerous delinquent acts purportedly stemming from recurring incidents of sexual assault of his then-eleven-year-old foster brother, A.O. Pursuant to
A two-day certification hearing commenced on April 2, 2014, before the Honorable Joseph A. Smyth. At the hearing, A.O. testified that Taylor orally and anally sodomized him on several occasions when A.O. was in sixth grade, resulting in chronic physical damage and severe mental anguish. Notes of Testimony (“N.T.“), 4/2/2014, at 6-77. The boys’ foster mother also described a number of discrete episodes that piqued her suspicions that Taylor might have engaged in improper behavior with A.O. Id. at 77-112. In light of this testimony, the juvenile court found that the Commonwealth had established a prima facie case that Taylor had committed the delinquent acts alleged in the petition. Id. at 114-15. Due to Taylor‘s prior delinquency adjudication for burglary, a first-degree felony, the burden shifted to the defense to establish that transfer would not serve the public interest. See
The Commonwealth subsequently posited that “the first step in sex offender treatment [is] admitting guilt,” id. at 58, and, after the close of evidence, reiterated its view that Taylor was “in denial” and that an “admission” would be necessary for treatment to work in this case. Id. at 109.
The juvenile court agreed with the Commonwealth that Taylor was not amenable to treatment within the juvenile system, certified the matter to adult criminal court, and contemporaneously offered the following rationale in support of its ruling:
I think one of the Commonwealth‘s arguments is that the defendant has been in treatment for almost every issue that the defendant‘s expert has identified and, notwithstanding that treatment, within six months committed a series of forcible rapes, which is much more serious than the issue he was in treatment for.
I think the defense expert makes a distinction, and so does the defendant -- or they make a good point, not necessarily a distinction -- when they say, look, the sex offense is totally different than the burglary. And because someone was successful in a burglary, that‘s not at all related to the sexual offense, and he never really got treatment for the sexual offense. That‘s basically the argument as I understand it.
And I don‘t necessarily disagree with that, but then I think the defense expert becomes a little bit inconsistent and sort of goes back and forth where she counters that particular Commonwealth with [sic] you can‘t compare these other matters to a sex offense, but then she goes back and forth and says but because he did well in treatment in the other matters, he will do well for treatment as a sex offender. So in one sense, she tries to separate the two, and then in another sense, she tries to blend the two, and I find that testimony to be inconsistent.
I think another dilemma or conundrum for the defense is that‘s their approach,
he‘s had an unfortunate upbringing, through no fault of his own. To a [] certain extent, he is antisocial and damaged, and that‘s not his fault. But is he so damaged that he can‘t be rehabilitated for a sex offender, or can he be rehabilitated for a sex offender? And I think part of the dilemma is they don‘t distinguish sex offenders from burglary, so now they blend their argument and say because he‘s done well in the first, he can do well in the second.
And they won‘t admit that he‘s committed the sex offense, and that‘s sort of their conundrum, because time is of the essence. He‘s approaching 18 years old. The act -- you can argue degree of sophistication all you want, but it was a predatory damaging act that occurred repeatedly over a 1-year period of time.
If you‘re going to go on the sex offenders’ treatment, it‘s important that you admit, No. 1; examine your triggers, No. 2; talk about how you can avoid your triggers; and identify up-front the depth of the problem. And here, we can‘t identify the depth of the problem largely because we‘re not admitting yet that there is a problem.
What if he were to sit there for a year and a half before he finally admitted that he did something? I mean, I assume he‘s still denying. Counsel‘s arguments have been phrased “if this is true, it‘s a horrendous act.”
They made a distinction when he denied, when he said to Dr. Buxbaum -- I believe he was a psychiatrist -- “I didn‘t do anything wrong.” Counsel said now he wants to say he participates in treatment and defense counsel argued, well, maybe the treatment‘s not talking about sex offenders’ treatment. And that‘s the very issue, though, is he amenable to sex offenders’ treatment? And, in the juvenile system, time is running out. As I said, there is only a few years left, and the depth -- and if he doesn‘t make sufficient progress, he‘s 21, he‘s back on the streets, and he‘s released from the jurisdiction of the Court with no supervision at all. That‘s the dilemma.
And when Dr. Machinski in her report indicates the issues that he needs treatment in and the Commonwealth argues, well, none of this has to do with amenability within the statute, well, it might, when you have four other categories. It would certainly refer to amenability for a crime that‘s much less serious than this. But I don‘t know that it means anything with regard to somebody who‘s committed the type of act that he‘s alleged to have committed.
So for all the reasons in the statute as enumerated by [the Commonwealth] and because it‘s the defense burden of proof, I‘m going to grant the Commonwealth‘s motion to certify him to adult court. Thank you.
Id. at 112-15 (emphasis added).
Following certification, from June 20-21, 2016, Taylor was tried before a jury, with the Honorable William R. Carpenter presiding. At the conclusion of trial, the jury found Taylor guilty of rape of a child and some related crimes. On January 31, 2017, the court sentenced Taylor to an aggregate term of ten to twenty-five years’ imprisonment, followed by ten years’ probation. Taylor appealed his judgment of sentence.
In an unpublished decision, the Superior Court affirmed. Commonwealth v. Taylor, 856 EDA 2017, 2018 WL 4290127 (Pa. Super. Sept. 10, 2018). Relevant here, Taylor asserted that the juvenile court violated his Fifth Amendment privilege against compulsory self-incrimination when deciding whether to transfer the matter by relying substantially upon Taylor‘s refusal to admit to the alleged offenses. The panel
Here, the juvenile court similarly “referenced Taylor‘s failure to admit guilt and that admission was a step in sex offender treatment.” Taylor, 2018 WL 4290127 at *6. Citing Brown, the Superior Court succinctly concluded that “[t]his was error.” Id. Notwithstanding that “impermissible consideration,” however, the panel determined that the juvenile court did not abuse its discretion in finding that Taylor had failed to carry his burden to establish that his case should remain in the juvenile system. The panel reasoned that the juvenile court‘s ruling was based upon the totality of the evidence presented at the hearing, which included “the seriousness of the alleged crime, the time remaining in the court‘s jurisdiction, and the failure of Taylor‘s previous treatment to prevent the alleged crimes.” Id. Accordingly, despite the juvenile court‘s erroneous invocation of Taylor‘s silence, the Superior Court affirmed the order certifying his transfer to adult court.
We granted Taylor‘s petition for allowance of appeal in order to consider whether the juvenile court violated the Fifth Amendment by considering Taylor‘s silence in deciding whether to certify the case for transfer to adult court for prosecution, an issue of first impression in this Court, and one of great importance to the Commonwealth.3
II.
A.
Taylor acknowledges that the Commonwealth satisfied the initial prerequisites for certification—namely, that it established a prima facie case that, when Taylor was at
Focusing upon Yoder‘s testimony that there was insufficient time left within the jurisdiction of the juvenile court, Taylor maintains that the expert‘s opinion was premised upon the ostensible significance of his refusal to admit to the crimes alleged. Id. The Commonwealth‘s argument to the juvenile court similarly stressed his lack of a confession—a factor upon which Taylor claims the court placed great weight. Id. at 22 (observing that four of the ten paragraphs of the court‘s analysis were “devoted to the fact that Taylor had never admitted to committing the crimes he pled not guilty to, and also that Taylor‘s attorney had not admitted in open court that Taylor committed the alleged crimes“). In fact, Taylor argues, “while the juvenile court‘s remarks can be difficult to parse, the juvenile court actually gives no reason for its decision other than Taylor‘s refusal to incriminate himself.” Id. Therefore, Taylor posits that the lower court not only misapplied the certification statute, but also violated his Fifth Amendment privilege against self-incrimination.
Furthermore, Taylor disputes the notion that we must ask “whether” the Fifth Amendment applies to juvenile transfer hearings, noting that its applicability was established by the Supreme Court of the United States more than half-a-century ago in Kent v. United States, 383 U.S. 541 (1966) (holding that juvenile transfer proceedings are subject to the guarantees of due process), and in In re Gault, 387 U.S. 1, 47-48 (1967) (holding that the Fifth Amendment applies to juveniles and may be “claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory“) (quoting Murphy v. Waterfront Comm‘n of New York Harbor, 378 U.S. 52, 94 (1964)). See Brief for Taylor at 24 (citing Gault, 387 U.S. at 47 (“It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment . . . is unequivocal and without exception. And the scope of the privilege is comprehensive.“)). From this authority, Taylor deduces that “it is clear that the Fifth Amendment ‘applies’ to a certification hearing.” Id. at 24 (citing Commonwealth v. Batty, 393 A.2d 435, 439 n.3 (Pa. 1978)).
Taylor asserts that he was penalized for failing to incriminate himself in breach of the Fifth Amendment. He suggests that there is “no precedent from a single state across our nation which has countenanced such a penalty for invoking one‘s Fifth Amendment right.” Id. at 25 (citing Christopher P. v. State, 816 P.2d 485, 488 (N.M. 1991) (“[W]e find no precedents [in any jurisdiction] sanctioning a court order compelling a child to make inculpatory statements in the presence of the prosecution for any purpose.“)). He underscores that the juvenile certification process holds “grave consequences” for a minor and notes that, had he remained in the juvenile
Moreover, Taylor invokes the Supreme Court‘s “penalty cases,” which he maintains “stand for the proposition that a person may not be penalized in any substantive way for the exercise of his Fifth Amendment rights.” See id. at 27 (citing Gardner v. Broderick, 392 U.S. 273 (1968) (invalidating a police officer‘s termination for invoking Fifth Amendment privilege in appearance before a grand jury); Lefkowitz v. Turley, 414 U.S. 70 (1973) (affirming order striking down five-year ban on obtaining government contracts for New York-licensed architects who refused to sign immunity waivers upon being summoned to testify before a grand jury); Lefkowitz v. Cunningham, 431 U.S. 801 (1977) (striking down New York election law providing for five-year ban on holding public office for political party officers who refuse to testify before a grand jury or waive immunity against subsequent prosecution)). Notably, Taylor argues, the “penalties” at issue in the above-mentioned cases—loss of employment, government contracts, and the right to hold public office—are “plainly less severe than the penalty of an increase of the maximum period of incarceration by 22 years and an increase of the maximum period of total supervision by 32 years,” as occurred here. Id. at 27-28.
Additionally, Taylor focuses upon the Superior Court‘s discussion in Brown concerning the availability of “use and derivative use” immunity under the Juvenile Act. Although the Superior Court did not address that aspect of the Brown decision, Taylor proffers that no statutory grant of immunity could have remedied the Fifth Amendment problem here. Id. at 28. In order for a grant of immunity to overcome the constitutional privilege against self-incrimination, Taylor contends, it must preclude not only the use of the incriminating statement itself, but also any fruits derived from that statement. Id. at 28-29 (citing Kastigar v. United States, 406 U.S. 441 (1972); Commonwealth v. Swinehart, 664 A.2d 957, 960 n.5 (Pa. 1995)). Taylor endorses Brown‘s rationale and opines that the protections contained within
Brown‘s reasoning aside, Taylor cautions that
Taylor further advances a quasi-statutory argument with a constitutional flavor. He posits that requiring a self-incriminating statement as a prerequisite to a finding of amenability to treatment in the juvenile system is a fundamental misinterpretation of the Juvenile Act, because a statute may not be interpreted in a manner violative of the Constitution. Id. He highlights the Gault Court‘s rejection of the government‘s argument that obtaining confessions from juveniles would further the objectives of the juvenile statute at issue there. The Supreme Court disagreed, countering that “evidence is accumulating that confessions by juveniles do not aid in ‘individualized treatment,’ . . . and that compelling the child to answer questions, without warning or advice as to his right to remain silent, does not serve this or any other good purpose.” Gault, 387 U.S. at 51. By obligating a juvenile to repent or to admit guilt on pain of transfer to adult court for criminal prosecution violates the Fifth Amendment, Taylor believes that the juvenile court not only infringed upon a fundamental privilege guaranteed by the Constitution, but also misapplied the Juvenile Act and exceeded its lawful authority. Brief for Taylor at 31-32.
In a similar vein, Taylor also cites this Court‘s rejection of an analogous argument in Commonwealth v. Bethea, 379 A.2d 102 (Pa. 1977), in which we held that a trial court could not impose a harsher sentence simply because a defendant exercised his Sixth Amendment right to a trial by jury. Significantly, the Bethea Court emphasized that requiring or encouraging an admission of guilt prior to adjudication is unconstitutional:
Repentance has a role in penology. But the premise of our criminal jurisprudence has always been that the time for repentance comes after trial. The adversary process is a fact-finding engine, not a drama of contrition in which a prejudged
defendant is expected to knit up his lacerated bonds to society. . . . Moreover, the refusal of a defendant to plead guilty is not necessarily indicative of a lack of repentance. A man may regret his crime but wish desperately to avoid the stigma of a criminal conviction.
In fact, a colorable argument can be made that a glib willingness to admit guilt in order to “secure something in return” may indicate quite the opposite of repentance, and that a reluctance to admit guilt may in fact reflect repentance.
Id. at 105 n.8 (quoting Scott v. United States, 419 F.2d 264, 270-71 (D.C. Cir. 1969) (internal citation omitted)). That same rationale applies here, Taylor says.
Turning to the second issue, Taylor avers that the Superior Court, having determined that the juvenile court misapplied
Taylor also claims that the Superior Court conflated the abuse-of-discretion standard with harmless-error review. Id. Assuming that harmless error is the applicable standard under these circumstances, Taylor contends that “it is plain that the juvenile court‘s error was not harmless.” Id. Specifically, Taylor disputes the panel‘s conclusion that the juvenile court‘s contemplation of “proper statutory factors” somehow “sanitize[d] the massive ‘impermissible consideration,’ as the Superior Court put it.” Id. at 36 (quoting Taylor, 2018 WL 4290127 at *6). He analogizes the juvenile court‘s “reli[ance] upon an erroneous and unconstitutional factor” to the situation in Bethea, where this Court rejected the Commonwealth‘s contention that the sentencing court did not abuse its discretion by erroneously considering Bethea‘s jury demand when affixing his sentence because it also had considered other relevant, constitutional factors. Id. at 37-38.
Once an abuse of discretion has been established, Taylor advises, “a remand is generally the appropriate remedy.” Id. at 38 (citing E.F., 995 A.2d at 332-33). He asserts, however, that, having turned twenty-one during the pendency of this appeal, he now is beyond the jurisdiction of the juvenile court to re-adjudicate the Commonwealth‘s petition to transfer the case to criminal court. Id. (citing In re Jones, 246 A.2d 356, 363 n.5 (Pa. 1968) (“The Juvenile Court . . . loses jurisdiction over persons when they attain majority.“)); see also id. at 39 (citing Johnson, 669 A.2d at 321 (“[W]e find that the transfer order in question is jurisdictional in every sense of the term. Hence, if the challenged order is improper, jurisdiction does not vest with the receiving court.“)). Taylor distinguishes his situation from that at issue in Kent. Id. at 40-41. There, the Supreme Court recognized that, although it could not send the matter back to the juvenile court after Kent had aged out of the juvenile system, the Court could remand to the District Court for a de novo hearing pursuant to a “safety valve” in the D.C. Code, which permitted the District Court to exercise the powers of the juvenile court when the latter no longer had jurisdiction. Kent, 383 U.S. at 564 (citing Black v. United States, 355 F.2d 104, 107 (D.C. 1965)). Taylor contends that there is no such mechanism for holding an individual after he exceeds the age of maturity under Pennsylvania law if jurisdiction illegally was vested with the criminal court. Brief for Taylor at 42. Because the “issue of [juvenile] certification is jurisdictional and therefore not waivable,” Commonwealth v. Moyer, 444 A.2d 101, 102 (Pa. 1982), Taylor ventures that discharge is the only appropriate remedy for the infringement of his constitutional privilege.
B.
In a sparse, two-page response, the Commonwealth insists that there was no Fifth Amendment violation here because Taylor “opened the door to the court‘s limited consideration of his silence in relation to his amenability [t]o treatment before his 21st birthday.” Brief for the Commonwealth at 11. Since Taylor‘s psychiatric expert opined that the then-seventeen-year-old Taylor adequately could be treated within the juvenile system before the court lost jurisdiction over him, the Commonwealth submits that the juvenile court was right to ponder whether Taylor “would admit guilt during treatment . . . or whether it might take months or years before he was willing to take the first necessary step in treatment.” Id. at 12. “This was an appropriate consideration given defendant‘s evidence and argument.” Id. (citing United States v. Robinson, 485 U.S. 25, 33-34 (1988) (holding that the defense may open the door to evidence of silence)).
The remainder of the Commonwealth‘s argument principally focuses upon establishing that any constitutional error was harmless. See id. at 13 (“Any error stemming from the consideration of defendant‘s refusal to incriminate himself was de minimis in view of the overwhelming evidence supporting the juvenile court‘s decision.“). To that end, the Commonwealth builds upon the Superior Court‘s analysis of the noncontroversial factors supporting certification that the juvenile court considered. According to the Commonwealth, there was ample evidence of record demonstrating that Taylor was not amenable to treatment, contrary to his expert‘s opinion that he could be treated within the time remaining in the juvenile system. Id. at 17-19.
Moreover, juvenile courts statutorily are required to consider a defendant‘s capacity for rehabilitation prior to the expiration of jurisdiction. Id. at 19 (citing
C.
In reply, Taylor contests the Commonwealth‘s suggestion that he “opened the door” on the issue of his silence when Dr. Machinski agreed that successful completion of sex offender treatment often began with admitting guilt. Reply Brief for Taylor at 2. He notes the Commonwealth‘s omission of the fact that the expert merely was responding to the prosecutor‘s leading
Lastly, Taylor highlights the Commonwealth‘s failure directly to answer the second question presented, suggesting that the omission is a tacit concession that the juvenile court abused its discretion. Reiterating his view that a court per se abuses its discretion in committing a constitutional error, Taylor argues that the Superior Court‘s quasi-harmless error review was erroneous because a misapplication of the law resulting in the denial of a constitutional right can never be a de minimis infraction. He cites Commonwealth v. Lewis, 598 A.2d 975 (Pa. 1991), in which this Court held that, when a defendant requests that the jury be instructed not to draw an adverse inference from his refusal to take the witness stand, a trial court‘s failure to give the desired charge, “when requested to do so in a timely fashion, can never amount to harmless error.” Id. at 981 (emphasis in original); see id. at 982 (“Because the right of a criminal defendant to decline to take the stand without adverse comment or inference is a fundamental one under Article I, Section 9 [of the Pennsylvania Constitution], the failure of the trial court to give the ‘no-adverse-inference’ instruction when so requested is far from the type of ’de minimis’ infraction which might form the basis for a ‘harmless error’ finding.“) (citing Commonwealth v. Story, 383 A.2d 155, 164-65 (Pa. 1978)).
Taylor similarly relies upon Commonwealth v. Edwards, 637 A.2d 259 (Pa. 1993), where this Court declared that “we have no hesitancy in announcing for the future that it will be per se reversible error if a judge instructs the jury concerning a defendant‘s right to testify when the defendant has requested that no such instruction be given.” Id. at 262. He posits that the circumstances presented here call for “[t]he same expedience and clarity . . . with regard to violations of the Fifth Amendment during certification hearings.” Reply Brief at 9. For these reasons, Taylor concludes that a harmless error analysis is not available under these circumstances.5
Faced with a question of constitutional dimensions, the parameters of our review are well-established. The standard of review is de novo, and our scope is plenary. Commonwealth v. Davis, 220 A.3d 534, 540 (Pa. 2019).
A.
The Fifth Amendment to the United States Constitution, applicable to the States pursuant to the Fourteenth Amendment, commands that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”
The maxim . . . had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused person[s] . . . . So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.
Brown v. Walker, 161 U.S. 591, 596-97 (1896); see generally Miranda v. Arizona, 384 U.S. 436, 458-66 (1966) (tracing the origins and evolution of the privilege).
The centrality of the privilege in American jurisprudence is beyond cavil. “The
To those ends, the High Court has explained that “[t]here are rights of constitutional stature whose exercise a State may not condition by the exaction of a price.” Garrity v. New Jersey, 385 U.S. 493, 500 (1967). In Griffin v. California, 380 U.S. 609 (1965), the seminal decision in the so-called “penalty cases,” the Court reflected upon the practice of drawing an adverse inference from a defendant‘s silence, which it deemed “a remnant of the ‘inquisitorial system of criminal justice.‘” Id. at 614 (quoting Murphy, 378 U.S. at 55). Reasoning that “comment on the refusal to testify . . . is a penalty imposed by courts for exercising a constitutional privilege,” which “cuts down on the privilege by making its assertion costly,” id., the Court held that the
reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates “a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest entire load“[;] our respect for the inviolability of the human personality and of the right of each individual “to a private enclave where he may lead a private life“[;] our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent.”
Tehan v. United States ex rel. Shott, 382 U.S. 406, 414 n.12 (1966) (internal citations omitted).
Moreover, although the privilege is commonly understood in the context of criminal allegations, its availability “does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” Gault, 387 U.S. at 49; see Miranda, 384 U.S. at 467 (“[T]here can be no doubt that the
Because “[t]he value of constitutional privileges is largely destroyed if persons can be penalized for relying on them,” Grunewald v. United States, 353 U.S. 391, 425 (1957) (Black, J., concurring), the Supreme Court roundly has “condemn[ed] the practice of imputing a sinister meaning to the exercise of a person‘s constitutional right under the
Self-incriminating statements only may be compelled, the Court has clarified, where the potential exposure to criminal punishment no longer exists. Such is the case with grants of immunity. In those discrete instances, “[t]he constitutional inquiry . . . is whether the immunity granted . . . is coextensive with the scope of the privilege.” Kastigar, 406 U.S. at 449; see Hoffman v. United States, 341 U.S. 479, 486 (1951) (“The privilege afforded not only extends to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute” the accused.). Whereas the
The preceding authority demonstrates that the
When evaluating a petition to transfer a minor to adult court in Pennsylvania, a juvenile court must find “that there are reasonable grounds to believe that the public interest is served by the transfer of the case for criminal prosecution” before granting the Commonwealth‘s request.
- age;
- mental capacity;
- maturity;
- the degree of criminal sophistication exhibited by the child;
- previous records, if any;
- 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;
- whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;
- probation or institutional reports, if any; [and]
- any other relevant factors[.]
Notwithstanding the court‘s duty to consider the minor‘s capacity for rehabilitation within the time remaining before jurisdiction expires, the Commonwealth cites no authority, nor have we unearthed any, that remotely suggests that the failure to admit to the commission of a delinquent act—let alone one punishable as a felony if committed by an adult—may be considered by the juvenile court in rendering its decision. To the contrary, we find the Superior Court‘s opinion in Brown, upon which the panel below relied, to be exceedingly persuasive. There the Commonwealth charged eleven-year-old Brown with homicide and homicide of an unborn child after he allegedly shot his father‘s pregnant fiancé once in the head, killing her. Brown, 26 A.3d at 489. Brown subsequently sought to decertify the criminal proceedings and have the matter transferred to juvenile court. Id. Relying upon the Commonwealth‘s psychiatric expert, who evaluated Brown and opined that he could not be rehabilitated unless he took responsibility for his actions—which Brown had not done—the trial court denied his petition, concluding that Brown was not amenable to treatment in the juvenile system. Id. at 489-90. The Superior Court reversed, agreeing with Brown‘s assertion “that the trial court violated his rights against self-incrimination because it effectively required him to admit guilt or accept responsibility to prove that he was amenable to treatment and capable of rehabilitation.” Id. at 493.
As a threshold matter, the Superior Court began by surveying the prevailing authority to evaluate whether the
Relating the William M. Court‘s reasoning to the facts in Brown, the Superior Court determined that the trial court “applied
The Superior Court then considered the applicability of a 2008 amendment to Section 6338 of the Juvenile Act, which added subsection (c)(1), providing for a limited grant of immunity for incriminating statements “obtained from a child in the course of a screening or assessment that is undertaken in conjunction with any proceeding under” the Act.
The court began by identifying three types of immunity:
“Use” immunity provides immunity only for the testimony actually given pursuant to the order compelling said testimony. “Use and derivative use” immunity enlarges the scope of the grant to cover any information or leads that were derived from the actual testimony given under compulsion. . . . “Transactional” immunity is the most expansive, as it in
essence provides a complete amnesty to the witness for any transactions which are revealed in the course of the compelled testimony.
Id. at 499-500 (quoting Swinehart, 664 A.2d at 960 n.5). Because
In the panel‘s view, the trial court‘s interpretation of the transfer statute “encourages a juvenile to tender an admission of guilt” from which the Commonwealth could derive evidence for use in a criminal trial, impermissibly “chilling” the exercise of a fundamental right protected by the Constitution. Id. at 505.
Although the Commonwealth has a legitimate interest in determining whether a defendant is amenable to treatment in the juvenile system, it was not necessary, as a matter of statutory construction, for [Brown] to make an incriminating statement to prove that he was capable of rehabilitation. By its plain language,
42 Pa.C.S.A. § 6355(a)(4)(iii)(G) and(G)(VII) do not mandate that [Brown] admit guilt, accept responsibility or discuss the details of the facts underlying the charged crimes.
Id. at 506-07. “The trial court, therefore, improperly applied
Instantly, the Commonwealth has declined to contest this thorough analysis, opting instead to relegate its defense of the transfer proceedings below to the bare assertion that Taylor somehow “opened the door” to the juvenile court‘s consideration of his silence by deigning to contest the petition filed against him. That position, were it to prevail, would leave juveniles like Taylor with an impossible dilemma: either acquiesce to the transfer to adult court, or challenge it and effectively waive the
We also find the Commonwealth‘s reliance upon Robinson to be misplaced. In Robinson, 485 U.S. 25 (1988), the Supreme Court denied a
Conversely, here we observe that it was the Commonwealth that arguably invited a
Of course, we grant that certification proceedings readily are distinguishable from the criminal trials at issue in Griffin and its progeny. But whether self-incrimination is compelled in violation of the
The Supreme Court reversed. Likening Mitchell‘s plea to an offer to stipulate, the Court rejected the Government‘s assertion that the “guilty plea was a waiver of the privilege against compelled self-incrimination with respect to all the crimes comprehended in the plea.” Id. at 321; see id. at 325 (“We reject the position that either [Mitchell‘s] guilty plea or her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing.“). The Court cautioned that “[t]reating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants,” id. at 324, reasoning that:
[w]ere we to accept the Government‘s position, prosecutors could indict without specifying the quantity of drugs involved, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the drug quantity. The result would be to enlist the defendant as an instrument in his or her own condemnation, undermining the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power. Rogers v. Richmond, 365 U.S. 534, 541 (1961) (“[O]urs is an accusatorial and not an inquisitorial system[.]“).
Mitchell, 526 U.S. at 325 (parallel citations omitted). Hence, the Court reiterated its denunciation of the premise that, “[w]here a sentence has yet to be imposed . . . ‘incrimination is complete once guilt has been adjudicated.‘” Id. (quoting Estelle, 451 U.S. at 462).
Acknowledging the general rule that, “where there can be no further incrimination, there is no basis for the assertion of the privilege,” the Court “conclude[d] that [the] principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final.” Mitchell, 526 U.S. at 326; see id. (“If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared.“). “Where the sentence has not yet been imposed,” however, “a defendant may have a legitimate fear of adverse consequences from further testimony.” Id. Because Mitchell‘s punishment had not yet been levied, the Court ultimately observed that, “[b]y holding [Mitchell‘s] silence against her in determining the facts of the offense at the sentencing hearing,” the trial court “imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination.” Id. at 330. Accord United States v. Hale, 422 U.S. 171, 181 (1975) (holding that “it was prejudicial error for the trial court to permit cross-examination of [Hale] concerning his silence during police interrogation“); Grunewald, 353 U.S. at 424 (holding that “it was prejudicial error for the trial judge to permit cross-examination of [Grunewald] on his plea of the
In view of the foregoing authority, we adopt the Superior Court‘s well-reasoned opinion in Brown to the extent that it holds that the protections of the
We also concur in the Brown Court‘s conclusion that
Simply put, a minor‘s refusal to confess to an act for which he or she might be criminally prosecuted as an adult may not be considered when deciding whether to certify a case for transfer between juvenile and adult court. This remains true irrespective of the necessary considerations of amenability to treatment contemplated by the Juvenile Act or of the possibility of immunity contained therein. As there is no way to guarantee that certification would be denied, or decertification granted, upon an admission of guilt, a minor cannot be expected to take so broad a leap of faith.
B.
Having concluded that Taylor‘s
Whether to certify a juvenile matter for transfer is a decision committed to the sound discretion of the juvenile court pursuant to a carefully prescribed, multi-factored statutory analysis. Although we concur in the Superior Court‘s pronouncement that the juvenile court committed constitutional error by weighing Taylor‘s silence against him, we find that the panel‘s rationalization that the lower court did not abuse its discretion was itself erroneous.
The constitutional privilege against compelled self-incrimination “is a fundamental one,” and any “practice which
Traditionally, the prosecution bears the burden of demonstrating that any prejudice resulting from a Griffin violation did not redound to the defendant‘s detriment. See Chapman v. California, 386 U.S. 18, 25-26 (1967) (applying harmless error review to Griffin errors); Commonwealth v. Henderson, 317 A.2d 288, 291 (Pa. 1974) (same); cf. Anderson v. Nelson, 390 U.S. 523, 523-24 (1968) (per curiam) (holding that “comment on a defendant‘s failure to testify cannot be labeled harmless error in a case where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal“).
Here, however, we are presented with a
It is so ordered.
Chief Justice Saylor and Justices Todd and Mundy join the opinion.
Justice Baer files a concurring and dissenting opinion in which Justices Donohue and Dougherty join.
Notes
(1)(i) a deadly weapon as defined in
(ii) the child was 15 years of age or older at the time of the offense and was previously adjudicated delinquent of a crime that would be considered a felony if committed by an adult; and
(2) there is a prima facie case that the child committed a delinquent act which, if committed by an adult, would be classified as rape, involuntary deviate sexual intercourse, aggravated assault as defined in
- Does a juvenile court violate the Fifth Amendment by holding a juvenile‘s failure to admit guilt against him during a certification hearing?
- Did the Superior Court erroneously conclude that a juvenile court does not abuse its discretion by holding a juvenile‘s failure to admit guilt against him during a certification hearing because the court also considered other statutorily-required factors when making its certification decision?
(b) Self-incrimination.--A child charged with a delinquent act need not be a witness against or otherwise incriminate himself. . . . A confession validly made by a child out of court at a time when the child is under 18 years of age shall be insufficient to support an adjudication of delinquency unless it is corroborated by other evidence.
(c) Statements and information obtained during screening or assessment.--
(1) No statements, admissions or confessions made by or incriminating information obtained from a child in the course of a screening or assessment that is undertaken in conjunction with any proceedings under this chapter, including, but not limited to, that which is court ordered, shall be admitted into evidence against the child on the issue of whether the child committed a delinquent act under this chapter or on the issue of guilt in any criminal proceeding.
(2) The provisions of paragraph (1) are in addition to and do not override any existing statutory and constitutional prohibition on the admission into evidence in delinquency and criminal proceedings of information obtained during screening, assessment or treatment.