*2 ROWLEY, WIEAND, Before OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON ELLIOTT, and FORD JJ.
POPOVICH, Judge: granted This case was banc en consideration to resolve an appeal by the Commonwealth from the orders of the Court Division, Common Pleas of Philadelphia County, Juvеnile (R.P. “discharging” E.J.) appellees (5) and from five counts each Aggravated Assault, Simple Assault, Posses- of an Crime, sion Instrument of Reckless Endangerment of Person, Another Criminal Conspiracy Risking and a Catas- trophe. We dismiss facts,
The presented at hearing, were properly characterized judge Court as follows: elementary school children from St. Edward’s While noontime recess in the having sсhoolyard School were School, Public one tan bull and a second pit Hartranft dog, complaining witnesses as a black described dog, and were released into the schoolyard. whitе said that were they five children who testified Court tan One child said the pit bitten bull. black playground during laid down the end of the dog white complaining the entire incident. The five witnesses were or re- identify unable to the individual individuals who dogs. complaining leased two witnesses Only ’em”, “sic hearing testified to the command words but were identify these unable individual witnesses these A playground spoke individuals who words. of the dеfendants testified that he saw classmate in a near the dogs schoolyard defendants with the lot inci- prior left their to the company schoolyard he only dent. He stated that the defendants’ intention was *3 police a officer dogs. by to mate the This was confirmed the a taken from defen- who read into record statement dant, An student J[], days six after the incident. older the recess and sсhoolyard during the supervising to capturing pit assisted in the tan bull who was unable the defendants as the individuals who released identify the dogs schoolyard. the into hearing, At the the case was taken under сompletion 11, 1989, whereupon the January petitions advisement until one against eleven-year-old juveniles “discharged”, the were being presented by the that the evidence as the grounds of appellees’ was insufficient to establish the Commonwealth Opin- guilt a reasonable doubt.1 See Juvenile Court beyond ion at 3. appellate may for
1. An court affirm actions court below hearing proffered than the initial tribunal reasons other matter merits the to between the act). those result, unnecessary appeal. As reach the a we find it to ground of the alternative fоr the Juvenile Court’s dismissal of i.e., against charges appellees, failed that Commonwealth incapacity juveniles presumption the common law of of rebut ages (delinquent of seven аnd fourteen to commit a crime 539, Durham, Pa.Super. A.2d 108 See Commonwealth v. 255 389
123 Following to the denial of Commonwealth’s motion entered, ruling reconsider appeal this was filed and questions raises twо for our consideration. Before address- one, however, either ing we must decide whether Com- appeal monwealth’s is properly before us for review. juveniles argue Both this Court that the orders “dis- charging” lodged them from the appeal- offenses are not able, Commonwealth, whereas the hand, on the other con- that “legal” tends the Juvenile Court’s awas decision question on the of the continuing viability of the rebuttable (mens rea) of capacity juveniles of between the fourteen, and, ages such, appealable. seven See Brief at 23 Commonwealth’s & bar, found,
At the Juvenile Court and the record bears out, no evidence was offered guilt juveniles establish beyond a reasonable Opinion doubt. See Juvenile Court at 8. The absence such evidence was the alternate against basis the crimes appellees being “discharged” court below. See 1, supra. note
Because jeopardy attached with the commencement of the juvenile hearing In the receipt and the see testimony, Interest 334, 348, of R.R., Pa.Super. 12, 344 n. 353 n. 12 with the Juvenile “discharge” Court’s orders, the fundamental rule of double jeopardy jurispru dence applicаble became foreclose review such finding (“discharge”), it one be that was entered by the Tillman, court “error Commonwealth otherwise.” 395, 397, 795, 501 Pa. A.2d also Sanab see States, ria v. United 54, 2170, 437 U.S. 98 S.Ct. *4 (1978). 43 In words, L.Ed.2d other bеcause we read the finding record indicate a of guilty” “not on the charges brought against (the the appellees nomenclature notwith standing), the inquiry appellate court terminated is thе jurisdictional since for prerequisites an have appeal not (1978) (en banc). continuing viability We leave the resolution of the incapacity juveniles of the common law of the day. another 124 See Common- Commonwealth. appellant/ met the by
been 410, 413 see 307, Pa. Ray, v. 448 wealth is with and Tillman, supra. This is consistent position also teaching Supreme Court’s of the United States an extеnsion 106 S.Ct. Pennsylvania, U.S. Smalis in Supreme (1986), Pennsylvania wherein L.Ed.2d 116 evidence, demurrer to the that a defendant’s view Court’s court, equiva- not the trial was by the granted was which disap- of the evidence was sufficiеncy lent It the Commonwealth’s preclude so as proved Court to be Supreme States considered United the finder- had entered been guilty” if a “not verdict as the Court wrote: holding, In so of-fact. prosecu- appeal by post[-]acquittal successful
When a the Double that violate proceedings lead to tion would purpose. no Clause, proper itself has appeal Jeopardy the interest frustrate appeal such an would Allowing against proceedings end to the having in an the accused * * * post[-]ac- Jeopardy Clause bars him. Double might it not when only quittal appeal by trans- trial, if would but also reversal result a second sort, of some devoted proceedings late into “further elements of to the going resolution of factual issues chаrged.” the offense omitted). (Citations 145-146, 106 at 1749 S.Ct. U.S. trial court be finding of the whether
Consequently, “dismissal”, or, in the case in- as “acquittal”, an labelled the same for double the effect “discharge”, stantly, 142, 106 at 1747. Id. at S.Ct. purposes.2 jeopardy which, were we to address of a scenario in It is difficult to conceive remand for a claims and direct a merits of the Commonwealth’s case, going to the of fаctual issues of the a "resolution re-assessment prohibited by charged’’, Smalis v. Penn- elements of the offense[s] 1745, 1749, 140, 146, L.Ed.2d 116 sylvania, 106 S.Ct. 476 U.S. place. would not take upon too much the verbi- Commonwealth foсuses We find that the entering ruling. Rath- adjudicating tribunal its utilized (be er, inquiry and resolution it must look to whether an one "dismissal”, "discharge") "guilty”, guilty”, caption "not offense(s) aspects dealing elemental matters with the fаctual find, This, instantly transpired. and is not charged we occurred have *5 Commonwealth’s contention to the contrary page its brief that “the word ‘discharge’ is not the equivalent to ” ‘not guilty’ delinquent’ ‘not fliеs the face of the specific Juvenile Court’s determination that the “evidence was insufficient to establish the [appellees’] guilt beyond a reasonable doubt”. Such a finding, as was Smalis’ on the effect of grant demurrer, of a triggered the protective insulating sphere of the Double Jeopardy Clause so deny as to any appeal by to have result, orders reviewed. As a wе are without jurisdic- present tion to hear the appeal.
Appeal dismissed.
OLSZEWSKI, J., files a concurring opinion.
OLSZEWSKI, Judge, concurring: I am in complete agreement the majority’s with treatment regarding the effect of the juveniles’ on “discharge” appeal. address, I however, would the alternate basis of- fered the trial court. This issue was briefed and argued parties before this court appeal; therefore, time has come to resolve this issue. I Accordingly, write separately address the substantive issue as to whether the common law rule of a presumption rebuttable that children under the age of fourteen laсk capacity to be criminally responsible has been superceded Act.
Statutes are not presumed to change the common law
unless
expressly
provisions,
declared
their
Common-
Miller,
wealth v.
469 Pa.
ruling by just the trial court. Such is not the case since a “factual” sufficiency bar, determination as to the of the evidence was made at and, such, is not reviewable on Id. of a child to commit concerning capacity lan- plain 42 Pa.C.S.A. 6301-6302.
criminal act.
§§
“delinquent
child”
guage
provides
“[a]
§
or older
the court has found
years
child ten
whom
*6
is
...,”
“dependent
child”
commit а
act
delinquent
years
of ten
and has
child
who ...
“[a]
act.”
6302.1
delinquent
committed a
Pa.C.S.A. §
Moreover,
inapplicable
common law
are
presumptions
created in order
juvenile
which were
proceedings
from the
of the adult
protect
punishments
children
harsh
Durham, supra,
v.
See Commonwealth
system.
criminal
J.,
view,
In
(Price,
dissenting).
my
the Juvenile Act accom-
removing
criminal
consequеnces
plishes
goal
delin-
from those children who have committed
behavior
program
supervi-
acts and instead substitutes
quent
6301(b)(2).
See
sion,
care and
Pa.C.S.A.
rehabilitation.
§