PRINTER'S NO. 3960
No. 2857 Session of 1998
INTRODUCED BY BAKER, CHADWICK, TRUE, NAILOR, THOMAS, FARGO,
BEBKO-JONES, GEIST, LAUGHLIN, B. SMITH, ROSS, RUBLEY, DeLUCA,
KENNEY, NICKOL, E. Z. TAYLOR, McCALL, SERAFINI, BOSCOLA,
CORRIGAN, STERN, BARRAR, EGOLF, MAHER, HALUSKA, HARHAI AND
WAUGH, OCTOBER 6, 1998
REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 6, 1998
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 juveniles.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Section 6302 of Title 42 of the Pennsylvania
7 Consolidated Statutes is amended to read:
8 § 6302. Definitions.
9 The following words and phrases when used in this chapter
10 shall have, unless the context clearly indicates otherwise, the
11 meanings given to them in this section:
12 "Child." An individual who:
13 (1) is under the age of 18 years;
14 (2) is under the age of 21 years who committed an act of
15 delinquency before reaching the age of 18 years; or
16 (3) was adjudicated dependent before reaching the age of
17 18 years and who, while engaged in a course of instruction or
1 treatment, requests the court to retain jurisdiction until
2 the course has been completed, but in no event shall a child
3 remain in a course of instruction or treatment past the age
4 of 21 years.
5 "Court." The court of common pleas.
6 "Custodian." A person other than a parent or legal guardian,
7 who stands in loco parentis to the child, or a person to whom
8 legal custody of the child has been given by order of a court.
9 "Delinquent act."
10 (1) The term means an act designated a crime under the
11 law of this Commonwealth, or of another state if the act
12 occurred in that state, or under Federal law, or under local
13 ordinances or an act which constitutes indirect criminal
14 contempt under 23 Pa.C.S. Ch. 61 (relating to protection from
15 abuse).
16 (2) The term shall not include:
17 (i) The crime of murder.
18 (ii) Any of the following prohibited conduct where
19 the child was 15 years of age or older at the time of the
20 alleged conduct and a deadly weapon as defined in 18
21 Pa.C.S. § 2301 (relating to definitions) was used during
22 the commission of the offense which, if committed by an
23 adult, would be classified as:
24 (A) Rape as defined in 18 Pa.C.S. § 3121
25 (relating to rape).
26 (B) Involuntary deviate sexual intercourse as
27 defined in 18 Pa.C.S. § 3123 (relating to involuntary
28 deviate sexual intercourse).
29 (C) Aggravated assault as defined in 18 Pa.C.S.
30 § 2702(a)(1) or (2) (relating to aggravated assault).
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1 (D) Robbery as defined in 18 Pa.C.S. §
2 3701(a)(1)(i), (ii) or (iii) (relating to robbery).
3 (E) Robbery of motor vehicle as defined in 18
4 Pa.C.S. § 3702 (relating to robbery of motor
5 vehicle).
6 (F) Aggravated indecent assault as defined in 18
7 Pa.C.S. § 3125 (relating to aggravated indecent
8 assault).
9 (G) Kidnapping as defined in 18 Pa.C.S. § 2901
10 (relating to kidnapping).
11 (H) Voluntary manslaughter.
12 (I) An attempt, conspiracy or solicitation to
13 commit murder or any of these crimes as provided in
14 18 Pa.C.S. §§ 901 (relating to criminal attempt), 902
15 (relating to criminal solicitation) and 903 (relating
16 to criminal conspiracy).
17 (iii) Any of the following prohibited conduct where
18 the child was 15 years of age or older at the time of the
19 alleged conduct and has been previously adjudicated
20 delinquent of any of the following prohibited conduct
21 which, if committed by an adult, would be classified as:
22 (A) Rape as defined in 18 Pa.C.S. § 3121.
23 (B) Involuntary deviate sexual intercourse as
24 defined in 18 Pa.C.S. § 3123.
25 (C) Robbery as defined in 18 Pa.C.S. §
26 3701(a)(1)(i), (ii) or (iii).
27 (D) Robbery of motor vehicle as defined in 18
28 Pa.C.S. § 3702.
29 (E) Aggravated indecent assault as defined in 18
30 Pa.C.S. § 3125.
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1 (F) Kidnapping as defined in 18 Pa.C.S. § 2901.
2 (G) Voluntary manslaughter.
3 (H) An attempt, conspiracy or solicitation to
4 commit murder or any of these crimes as provided in
5 18 Pa.C.S. §§ 901, 902 and 903.
6 (iv) Summary offenses, unless the child fails to
7 comply with a lawful sentence imposed thereunder, in
8 which event notice of such fact shall be certified to the
9 court.
10 (v) A crime committed by a child who has been found
11 guilty in a criminal proceeding for other than a summary
12 offense.
13 (vi) Prohibited conduct which, if committed by an
14 adult, would be classified as homicide while driving
15 under the influence as defined in 75 Pa.C.S. § 3735
16 (relating to homicide by vehicle while driving under
17 influence).
18 (vii) Prohibited conduct which, if committed by an
19 adult, would be classified as aggravated assault by
20 vehicle while driving under the influence as defined in
21 75 Pa.C.S. § 3735.1 (relating to aggravated assault by
22 vehicle while driving under the influence).
23 "Delinquent child." A child ten years of age or older whom
24 the court has found to have committed a delinquent act and is in
25 need of treatment, supervision or rehabilitation.
26 "Dependent child." A child who:
27 (1) is without proper parental care or control,
28 subsistence, education as required by law, or other care or
29 control necessary for his physical, mental, or emotional
30 health, or morals;
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1 (2) has been placed for care or adoption in violation of
2 law;
3 (3) has been abandoned by his parents, guardian, or
4 other custodian;
5 (4) is without a parent, guardian, or legal custodian;
6 (5) while subject to compulsory school attendance is
7 habitually and without justification truant from school;
8 (6) has committed a specific act or acts of habitual
9 disobedience of the reasonable and lawful commands of his
10 parent, guardian or other custodian and who is ungovernable
11 and found to be in need of care, treatment or supervision;
12 (7) is under the age of ten years and has committed a
13 delinquent act;
14 (8) has been formerly adjudicated dependent, and is
15 under the jurisdiction of the court, subject to its
16 conditions or placements and who commits an act which is
17 defined as ungovernable in paragraph (6); or
18 (9) has been referred pursuant to section 6323 (relating
19 to informal adjustment), and who commits an act which is
20 defined as ungovernable in paragraph (6).
21 "Protective supervision." Supervision ordered by the court
22 of children found to be dependent.
23 "Shelter care." Temporary care of a child in physically
24 unrestricted facilities.
25 Section 2. Sections 6322 and 6355 of Title 42 are amended to
26 read:
27 § 6322. Transfer from criminal proceedings.
28 (a) General rule.--Except as provided in 75 Pa.C.S. § 6303
29 (relating to rights and liabilities of minors) or in the event
30 the child is charged with murder or any of the offenses excluded
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1 by paragraph (2)(ii) [or (iii)], (iii), (vi) or (vii) of the
2 definition of "delinquent act" in section 6302 (relating to
3 definitions) or has been found guilty in a criminal proceeding,
4 if it appears to the court in a criminal proceeding that the
5 defendant is a child, this chapter shall immediately become
6 applicable, and the court shall forthwith halt further criminal
7 proceedings, and, where appropriate, transfer the case to the
8 division or a judge of the court assigned to conduct juvenile
9 hearings, together with a copy of the accusatory pleading and
10 other papers, documents, and transcripts of testimony relating
11 to the case. If it appears to the court in a criminal proceeding
12 charging murder or any of the offenses excluded by paragraph
13 (2)(ii) [or (iii)], (iii), (vi) or (vii) of the definition of
14 "delinquent act" in section 6302, that the defendant is a child,
15 the case may similarly be transferred and the provisions of this
16 chapter applied. In determining whether to transfer a case
17 charging murder or any of the offenses excluded from the
18 definition of "delinquent act" in section 6302, the child shall
19 be required to establish by a preponderance of the evidence that
20 the transfer will serve the public interest. In determining
21 whether the child has so established that the transfer will
22 serve the public interest, the court shall consider the factors
23 contained in section 6355(a)(4)(iii) (relating to transfer to
24 criminal proceedings).
25 (b) Order.--If the court finds that the child has met the
26 burden under subsection (a), the court shall make findings of
27 fact, including specific references to the evidence, and
28 conclusions of law in support of the transfer order. If the
29 court does not make its finding within 20 days of the hearing on
30 the petition to transfer the case, the defendant's petition to
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1 transfer the case shall be denied by operation of law.
2 (c) Expedited review of transfer orders.--The transfer order
3 shall be subject to the same expedited review applicable to
4 orders granting or denying release or modifying the conditions
5 of release prior to sentence, as provided in Rule 1762 of the
6 Pennsylvania Rules of Appellate Procedure.
7 (d) Effect of transfer order.--Where review of the transfer
8 order is not sought or where the transfer order is upheld the
9 defendant shall be taken forthwith to the probation officer or
10 to a place of detention designated by the court or released to
11 the custody of his parent, guardian, custodian, or other person
12 legally responsible for him, to be brought before the court at a
13 time to be designated. The accusatory pleading may serve in lieu
14 of a petition otherwise required by this chapter, unless the
15 court directs the filing of a petition.
16 (e) Transfer of convicted criminal cases.--If in a criminal
17 proceeding, the child is found guilty of a crime classified as a
18 misdemeanor, and the child and the attorney for the Commonwealth
19 agree to the transfer, the case may be transferred for
20 disposition to the division or a judge of the court assigned to
21 conduct juvenile hearings.
22 § 6355. Transfer to criminal proceedings.
23 (a) General rule.--After a petition has been filed alleging
24 delinquency based on conduct which is designated a crime or
25 public offense under the laws, including local ordinances, of
26 this Commonwealth, the court before hearing the petition on its
27 merits may rule that this chapter is not applicable and that the
28 offense should be prosecuted, and transfer the offense, where
29 appropriate, to the division or a judge of the court assigned to
30 conduct criminal proceedings, for prosecution of the offense if
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1 all of the following exist:
2 (1) The child was 14 or more years of age at the time of
3 the alleged conduct.
4 (2) A hearing on whether the transfer should be made is
5 held in conformity with this chapter.
6 (3) Notice in writing of the time, place, and purpose of
7 the hearing is given to the child and his parents, guardian,
8 or other custodian at least three days before the hearing.
9 (4) The court finds:
10 (i) that there is a prima facie case that the child
11 committed the delinquent act alleged;
12 (ii) that the delinquent act would be considered a
13 felony if committed by an adult;
14 (iii) that there are reasonable grounds to believe
15 that the public interest is served by the transfer of the
16 case for criminal prosecution. In determining whether
17 the public interest can be served, the court shall
18 consider the following factors:
19 (A) the impact of the offense on the victim or
20 victims;
21 (B) the impact of the offense on the community;
22 (C) the threat to the safety of the public or
23 any individual posed by the child;
24 (D) the nature and circumstances of the offense
25 allegedly committed by the child;
26 (E) the degree of the child's culpability;
27 (F) the adequacy and duration of dispositional
28 alternatives available under this chapter and in the
29 adult criminal justice system; and
30 (G) whether the child is amenable to treatment,
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1 supervision or rehabilitation as a juvenile by
2 considering the following factors:
3 (I) age;
4 (II) mental capacity;
5 (III) maturity;
6 (IV) the degree of criminal sophistication
7 exhibited by the child;
8 (V) previous records, if any;
9 (VI) the nature and extent of any prior
10 delinquent history, including the success or
11 failure of any previous attempts by the juvenile
12 court to rehabilitate the child;
13 (VII) whether the child can be rehabilitated
14 prior to the expiration of the juvenile court
15 jurisdiction;
16 (VIII) probation or institutional reports,
17 if any;
18 (IX) any other relevant factors; and
19 (iv) that there are reasonable grounds to believe
20 that the child is not committable to an institution for
21 the mentally retarded or mentally ill.
22 (b) Chapter inapplicable following transfer.--The transfer
23 terminates the applicability of this chapter over the child with
24 respect to the delinquent acts alleged in the petition.
25 (c) Transfer at request of child.--The child may request
26 that the case be transferred for prosecution in which event the
27 court may order this chapter not applicable.
28 (d) Effect of transfer from criminal proceedings.--No
29 hearing shall be conducted where this chapter becomes applicable
30 because of a previous determination by the court in a criminal
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1 proceeding.
2 (e) Murder and other excluded acts.--Where the petition
3 alleges conduct which if proven would constitute murder, or any
4 of the offenses excluded by paragraph (2)(ii) or (iii) of the
5 definition of "delinquent act" in section 6302 (relating to
6 definitions), the court shall require the offense to be
7 prosecuted under the criminal law and procedures, except where
8 the case has been transferred pursuant to section 6322 (relating
9 to transfer from criminal proceedings) from the division or a
10 judge of the court assigned to conduct criminal proceedings.
11 (f) Transfer action interlocutory.--The decision of the
12 court to transfer or not to transfer the case shall be
13 interlocutory.
14 (g) Burden of proof.--The burden of establishing by a
15 preponderance of evidence that the public interest is served by
16 the transfer of the case to criminal court and that a child is
17 not amenable to treatment, supervision or rehabilitation as a
18 juvenile shall rest with the Commonwealth unless the following
19 apply:
20 (1) (i) a deadly weapon as defined in 18 Pa.C.S. § 2301
21 (relating to definitions) was used and the child was 14
22 years of age at the time of the offense; or
23 (ii) the child was 15 years of age or older at the
24 time of the offense and was previously adjudicated
25 delinquent of a crime that would be considered a felony
26 if committed by an adult; and
27 (2) there is a prima facie case that the child committed
28 a delinquent act which, if committed by an adult, would be
29 classified as rape, involuntary deviate sexual intercourse,
30 aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or
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1 (2) (relating to aggravated assault), robbery as defined in
2 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to
3 robbery), robbery of motor vehicle, aggravated indecent
4 assault, kidnapping, voluntary manslaughter, an attempt,
5 conspiracy or solicitation to commit any of these crimes or
6 an attempt to commit murder as specified in paragraph (2)(ii)
7 of the definition of "delinquent act" in section 6302[.];
8 (3) there is a prima facie case that the child engaged
9 in prohibited conduct which, if committed by an adult, would
10 be classified as homicide while driving under the influence,
11 as defined in 75 Pa.C.S. § 3735 (relating to homicide by
12 vehicle while driving under influence); or
13 (4) there is a prima facie case that the child engaged
14 in prohibited conduct which, if committed by an adult, would
15 be classified as aggravated assault by vehicle while driving
16 under the influence as defined in 75 Pa.C.S. § 3735.1
17 (relating to aggravated assault by vehicle while driving
18 under the influence).
19 If [either] any of the four preceding criteria are met, the
20 burden of establishing by a preponderance of the evidence that
21 retaining the case under this chapter serves the public interest
22 and that the child is amenable to treatment, supervision or
23 rehabilitation as a juvenile shall rest with the child.
24 Section 3. This act shall take effect immediately.
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