Pennsylvania Act 1995-33 (session 1) — JUDICIAL CODE (42 PA.C.S.) - OMNIBUS AMENDMENTS

Act text

JUDICIAL CODE (42 PA.C.S.) - OMNIBUS AMENDMENTS
        Act of Nov. 17, 1995, Special Session 1, P.L. 1127, No. 33    Cl. 42
                      Special Session No. 1 of 1995
                               No. 1995-33

     SB 100

                                  AN ACT

     Amending Title 42 (Judiciary and Judicial Procedure) of the
        Pennsylvania Consolidated Statutes, requiring the presence of
        parents, guardians or custodians at proceedings involving
        juveniles; further defining "delinquent act" to exclude
        certain criminal offenses; and providing for children
        committing delinquent acts.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Title 42 of the Pennsylvania Consolidated
     Statutes is amended by adding a section to read:
      § 1523.  Parental or legal guardian attendance required at
                juvenile hearings.
        (a)  Order to attend.--In summary proceedings before a
     district justice or judge of the minor judiciary involving any
     individual who is under 18 years of age and is not emancipated,
     the district justice or judge of the minor judiciary may, when
     the district justice or judge of the minor judiciary determines
     that it is in the best interest of the child, issue an order
     specifically requiring the parent or legal guardian or other
     person with whom the child resides, if other than the parent or
     guardian, to be present and ready to participate in the
     proceedings with the juvenile. No later than ten days before
     such proceedings, the district justice or judge of the minor
     judiciary shall send a notice of the order to the parent or
     legal guardian or person with whom the child resides if other
     than the parent or guardian. Nothing in this subsection shall be
     construed to vest in either the individual who is under 18 years
     of age and is not emancipated to require participation under
     this subsection or the parent, legal guardian or other person
     with whom such individual resides the right to participate under
     this subsection.
        (b)  Contempt.--A person failing to comply with an order of
     participation may be found in contempt of court as outlined in
     section 4137 (relating to contempt powers of district justices).
        (c)  Bench warrant.--The district justice or judge of the
     minor judiciary shall issue a bench warrant for any parent,
     guardian or person with whom the child resides, if other than
     the parent or guardian, who fails to appear at any proceedings.
     The district justice or judge of the minor judiciary may waive
     any fine or other punishment if the person is found to be
     present and ready to participate in the proceedings with the
     juvenile after a bench warrant is issued.
        Section 2.  Section 6301(b)(2) of Title 42 is amended to
     read:
      § 6301.  Short title and purposes of chapter.
        * * *
        (b)  Purposes.--This chapter shall be interpreted and
     construed as to effectuate the following purposes:
            * * *
            (2)  Consistent with the protection of the public
        interest, to [remove from] provide for children committing
        delinquent acts [the consequences of criminal behavior, and
        to substitute therefor a program] programs of supervision,
        care and rehabilitation which provide balanced attention to
        the protection of the community, the imposition of
        accountability for offenses committed and the development of
        competencies to enable children to become responsible and
        productive members of the community.
            * * *
        Section 3.  The definition of "delinquent act" in section
     6302 of Title 42 is amended to read:
      § 6302.  Definitions.
        The following words and phrases when used in this chapter
     shall have, unless the context clearly indicates otherwise, the
     meanings given to them in this section:
        * * *
        "Delinquent act."
            (1)  The term means an act designated a crime under the
        law of this Commonwealth, or of another state if the act
        occurred in that state, or under Federal law, or under local
        ordinances.
            (2)  The term shall not include:
                (i)  The crime of murder.
                (ii)  Any of the following prohibited conduct where
            the child was 15 years of age or older at the time of the
            alleged conduct and a deadly weapon as defined in 18
            Pa.C.S. § 2301 (relating to definitions) was used during
            the commission of the offense, which, if committed by an
            adult, would be classified as:
                    (A)  Rape as defined in 18 Pa.C.S. § 3121
                (relating to rape).
                    (B)  Involuntary deviate sexual intercourse as
                defined in 18 Pa.C.S. § 3123 (relating to involuntary
                deviate sexual intercourse).
                    (C)  Aggravated assault as defined in 18 Pa.C.S.
                § 2702(a)(1) or (2) (relating to aggravated assault).
                    (D)  Robbery as defined in 18 Pa.C.S. §
                3701(a)(1)(i), (ii) or (iii) (relating to robbery).
                    (E)  Robbery of motor vehicle as defined in 18
                Pa.C.S. § 3702 (relating to robbery of motor
                vehicle).
                    (F)  Aggravated indecent assault as defined in 18
                Pa.C.S. § 3125 (relating to aggravated indecent
                assault).
                    (G)  Kidnapping as defined in 18 Pa.C.S. § 2901
                (relating to kidnapping).
                    (H)  Voluntary manslaughter.
                    (I)  An attempt, conspiracy or solicitation to
                commit murder or any of these crimes as provided in
                18 Pa.C.S. §§ 901 (relating to criminal attempt), 902
                (relating to criminal solicitation) and 903 (relating
                to criminal conspiracy).
                (iii)  Any of the following prohibited conduct where
            the child was 15 years of age or older at the time of the
            alleged conduct and has been previously adjudicated
            delinquent of any of the following prohibited conduct,
            which, if committed by an adult, would be classified as:
                    (A)  Rape as defined in 18 Pa.C.S. § 3121.
                    (B)  Involuntary deviate sexual intercourse as
                defined in 18 Pa.C.S. § 3123.
                    (C)  Robbery as defined in 18 Pa.C.S. §
                3701(a)(1)(i), (ii) or (iii).
                    (D)  Robbery of motor vehicle as defined in 18
                Pa.C.S. § 3702.
                    (E)  Aggravated indecent assault as defined in 18
                Pa.C.S. § 3125.
                    (F)  Kidnapping as defined in 18 Pa.C.S. § 2901.
                    (G)  Voluntary manslaughter.
                    (H)  An attempt, conspiracy or solicitation to
                commit murder or any of these crimes as provided in
                18 Pa.C.S. §§ 901, 902 and 903.
                [(ii)] (iv)  Summary offenses, unless the child fails
            to comply with a lawful sentence imposed thereunder, in
            which event notice of such fact shall be certified to the
            court.
                [(iii)] (v)  A crime committed by a child who has
            been found guilty in a criminal proceeding for other than
            a summary offense.
        * * *
        Section 4.  Section 6322 of Title 42 is amended to read:
      § 6322.  Transfer from criminal proceedings.
        (a)  General rule.--Except as provided in 75 Pa.C.S. § 6303
     (relating to rights and liabilities of minors) or in the event
     the child is charged with murder or any of the offenses excluded
     by paragraph (2)(ii) or (iii) of the definition of "delinquent
     act" in section 6302 (relating to definitions) or has been found
     guilty in a criminal proceeding, if it appears to the court in a
     criminal proceeding that the defendant is a child, this chapter
     shall immediately become applicable, and the court shall
     forthwith halt further criminal proceedings, and, where
     appropriate, transfer the case to the division or a judge of the
     court assigned to conduct juvenile hearings, together with a
     copy of the accusatory pleading and other papers, documents, and
     transcripts of testimony relating to the case. If it appears to
     the court in a criminal proceeding charging murder or any of the
     offenses excluded by paragraph (2)(ii) or (iii) of the
     definition of "delinquent act" in section 6302, that the
     defendant is a child, the case may similarly be transferred and
     the provisions of this chapter applied. In determining whether
     to transfer a case charging murder[, the court shall apply the
     criteria in section 6355(a)(4)(iii)(A) (relating to transfer to
     criminal proceedings). However, the child shall be required to
     show the court that the child is amenable to treatment,
     supervision or rehabilitation as a juvenile by meeting the
     criteria listed in section 6355(a)(4)(iii)(A).] or any of the
     offenses excluded from the definition of "delinquent act" in
     section 6302, the child shall be required to establish by a
     preponderance of the evidence that the transfer will serve the
     public interest. In determining whether the child has so
     established that the transfer will serve the public interest,
     the court shall consider the factors contained in section
     6355(a)(4)(iii) (relating to transfer to criminal proceedings).
        (b)  Order.--If the court [orders the case to be transferred
     to the division or a judge of the court assigned to conduct
     juvenile hearings,] finds that the child has met the burden
     under subsection (a), the court shall make findings of fact,
     including specific references to the evidence, and conclusions
     of law in support of the transfer order. If the court does not
     make its finding within 20 days of the hearing on the petition
     to transfer the case, the defendant's petition to transfer the
     case shall be denied by operation of law.
        (c)  Expedited review of transfer orders.--The transfer order
     shall be subject to the same expedited review applicable to
     orders granting or denying release or modifying the conditions
     of release prior to sentence, as provided in Rule 1762 of the
     Pennsylvania Rules of Appellate Procedure.
        (d)  Effect of transfer order.--Where review of the transfer
     order is not sought or where the transfer order is upheld the
     defendant shall be taken forthwith to the probation officer or
     to a place of detention designated by the court or released to
     the custody of his parent, guardian, custodian, or other person
     legally responsible for him, to be brought before the court at a
     time to be designated. The accusatory pleading may serve in lieu
     of a petition otherwise required by this chapter, unless the
     court directs the filing of a petition.
        [(b)] (e)  Transfer of convicted criminal cases.--If in a
     criminal proceeding [charging murder], the child is [convicted]
     found guilty of a crime [less than murder, the case may be
     transferred for disposition to the division or a judge of the
     court assigned to conduct juvenile hearings. If, in a criminal
     proceeding resulting from a transfer under section 6355(a), the
     child is convicted of a lesser charge which is] classified as a
     misdemeanor, and the child and the attorney for the Commonwealth
     agree to the transfer, the case may be transferred for
     disposition to the division or a judge of the court assigned to
     conduct juvenile hearings.
        Section 5.  Section 6340 of Title 42 is amended by adding a
     subsection to read:
      § 6340.  Consent decree.
        * * *
        (c.1)  Terms and conditions.--Consistent with the protection
     of the public interest, the terms and conditions of a consent
     decree shall, as appropriate to the circumstances of each case,
     include provisions which provide balanced attention to the
     protection of the community, accountability for offenses
     committed and the development of competencies to enable the
     child to become a responsible and productive member of the
     community.
        * * *
        Section 6.  Section 6352(a) of Title 42 is amended to read:
      § 6352.  Disposition of delinquent child.
        (a)  General rule.--If the child is found to be a delinquent
     child the court may make any of the following orders of
     disposition determined to be consistent with the protection of
     the public interest and best suited to [his] the child's
     treatment, supervision, rehabilitation[,] and welfare, which
     disposition shall, as appropriate to the individual
     circumstances of the child's case, provide balanced attention to
     the protection of the community, the imposition of
     accountability for offenses committed and the development of
     competencies to enable the child to become a responsible and
     productive member of the community:
            (1)  Any order authorized by section 6351 (relating to
        disposition of dependent child).
            (2)  Placing the child on probation under supervision of
        the probation officer of the court or the court of another
        state as provided in section 6363 (relating to ordering
        foreign supervision), under conditions and limitations the
        court prescribes.
            (3)  Committing the child to an institution, youth
        development center, camp, or other facility for delinquent
        children operated under the direction or supervision of the
        court or other public authority and approved by the
        Department of Public Welfare.
            (4)  If the child is 12 years of age or older, committing
        the child to an institution operated by the Department of
        Public Welfare.
            (5)  Ordering payment by the child of reasonable amounts
        of money as fines, costs or restitution as deemed appropriate
        as part of the plan of rehabilitation considering the nature
        of the acts committed and the earning capacity of the child.
        For an order made under this subsection, the court shall
        retain jurisdiction until there has been full compliance with
        the order or until the delinquent child attains 21 years of
        age. Any restitution order which remains unpaid at the time
        the child attains 21 years of age shall continue to be
        collectible under section 9728 (relating to collection of
        restitution, reparation, fees, costs, fines and penalties).
            (6)  An order of the terms of probation may include an
        appropriate fine considering the nature of the act committed
        or restitution not in excess of actual damages caused by the
        child which shall be paid from the earnings of the child
        received through participation in a constructive program of
        service or education acceptable to the victim and the court
        whereby, during the course of such service, the child shall
        be paid not less than the minimum wage of this Commonwealth.
        In ordering such service, the court shall take into
        consideration the age, physical and mental capacity of the
        child and the service shall be designed to impress upon the
        child a sense of responsibility for the injuries caused to
        the person or property of another. The order of the court
        shall be limited in duration consistent with the limitations
        in section 6353 (relating to limitation on and change in
        place of commitment) and in the act of May 13, 1915 (P.L.286,
        No.177), known as the ["]Child Labor Law.["] The court order
        shall specify the nature of the work, the number of hours to
        be spent performing the assigned tasks, and shall further
        specify that as part of a plan of treatment and
        rehabilitation that up to 75% of the earnings of the child be
        used for restitution in order to provide positive
        reinforcement for the work performed.
     In selecting from the alternatives set forth in this section,
     the court shall follow the general principle that the
     disposition imposed should provide the means through which the
     provisions of this chapter are executed and enforced consistent
     with section 6301(b) (relating to purposes) and when confinement
     is necessary, the court shall impose the minimum amount of
     confinement that is consistent with the protection of the public
     and the rehabilitation needs of the child.
        * * *
        Section 7.  Section 6355(a)(4) and (e) of Title 42 are
     amended and the section is amended by adding a subsection to
     read:
      § 6355.  Transfer to criminal proceedings.
        (a)  General rule.--After a petition has been filed alleging
     delinquency based on conduct which is designated a crime or
     public offense under the laws, including local ordinances, of
     this Commonwealth, the court before hearing the petition on its
     merits may rule that this chapter is not applicable and that the
     offense should be prosecuted, and transfer the offense, where
     appropriate, to the division or a judge of the court assigned to
     conduct criminal proceedings, for prosecution of the offense if
     all of the following exist:
            * * *
            (4)  The court finds:
                (i)  that there is a prima facie case that the child
            committed the delinquent act alleged;
                (ii)  that the delinquent act would be considered a
            felony if committed by an adult; [and]
                (iii)  that there are reasonable grounds to believe
            [all of the following:
                    (A)  That the child is not amenable to treatment,
                supervision or rehabilitation as a juvenile through
                available facilities, even though there may not have
                been a prior adjudication of delinquency. In
                determining this the court shall consider the
                following factors:
                        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.
                        The nature and circumstances of the acts for
                    which the transfer is sought.
                        Any other relevant factors.
                    (B)  That the child is not committable to an
                institution for the mentally retarded or mentally
                ill.
                    (C)  That the interests of the community require
                that the child be placed under legal restraint or
                discipline or that the offense is one which would
                carry a sentence of more than three years if
                committed as an adult.] that the public interest is
                served by the transfer of the case for criminal
                prosecution. In determining whether the public
                interest can be served, the court shall consider the
                following factors:
                    (A)  the impact of the offense on the victim or
                victims;
                    (B)  the impact of the offense on the community;
                    (C)  the threat to the safety of the public or
                any individual posed by the child;
                    (D)  the nature and circumstances of the offense
                allegedly committed by the child;
                    (E)  the degree of the child's culpability;
                    (F)  the adequacy and duration of dispositional
                alternatives available under this chapter and in the
                adult criminal justice system; and
                    (G)  whether the child is amenable to treatment,
                supervision or rehabilitation as a juvenile by
                considering the following factors:
                        (I)  age;
                        (II)  mental capacity;
                        (III)  maturity;
                        (IV)  the degree of criminal sophistication
                    exhibited by the child;
                        (V)  previous records, if any;
                        (VI)  the nature and extent of any prior
                    delinquent history, including the success or
                    failure of any previous attempts by the juvenile
                    court to rehabilitate the child;
                        (VII)  whether the child can be rehabilitated
                    prior to the expiration of the juvenile court
                    jurisdiction;
                        (VIII)  probation or institutional reports,
                    if any;
                        (IX)  any other relevant factors; and
                (iv)  that there are reasonable grounds to believe
            that the child is not committable to an institution for
            the mentally retarded or mentally ill.
        * * *
        (e)  Murder and other excluded acts.--Where the petition
     alleges conduct which if proven would constitute murder, or any
     of the offenses excluded by paragraph (2)(ii) or (iii) of the
     definition of "delinquent act" in section 6302 (relating to
     definitions), the court shall require the offense to be
     prosecuted under the criminal law and procedures, except where
     the case has been transferred pursuant to section 6322 (relating
     to transfer from criminal proceedings) from the division or a
     judge of the court assigned to conduct criminal proceedings.
        * * *
        (g)  Burden of proof.--The burden of establishing by a
     preponderance of evidence that the public interest is served by
     the transfer of the case to criminal court and that a child is
     not amenable to treatment, supervision or rehabilitation as a
     juvenile shall rest with the Commonwealth unless the following
     apply:
            (1) (i)  a deadly weapon as defined in 18 Pa.C.S. § 2301
            (relating to definitions) was used and the child was 14
            years of age at the time of the offense; or
                (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 18 Pa.C.S. § 2702(a)(1) or
        (2) (relating to aggravated assault), robbery as defined in
        18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to
        robbery), robbery of motor vehicle, aggravated indecent
        assault, kidnapping, voluntary manslaughter, an attempt,
        conspiracy or solicitation to commit any of these crimes or
        an attempt to commit murder as specified in paragraph (2)(ii)
        of the definition of "delinquent act" in section 6302.
     If either of the preceding criteria are met, the burden of
     establishing by a preponderance of the evidence that retaining
     the case under this chapter serves the public interest and that
     the child is amenable to treatment, supervision or
     rehabilitation as a juvenile shall rest with the child.
        Section 8.  This act shall apply to all delinquent acts
     committed on or after the effective date of this act.
        Section 9.  This act shall take effect in 120 days.

     APPROVED--The 17th day of November, A. D. 1995.

     THOMAS J. RIDGE