J-S08028-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

I.T.S.,

No. 1299 WDA 2017

Appeal from the Order entered August 30, 2017,

in the Court of Common Pleas of Indiana County,

Criminal Division at No(s): CP-32-CR-0001268-2016.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 25, 2018

In this matter, the Commonwealth appeals the trial court’s decision to 

transfer the criminal case of the juvenile Appellee, I.T.S., from adult 

proceedings to juvenile court. Because the trial court’s decision was not a 

gross abuse of discretion, we find the decertification of the case was proper. 

We affirm.

We summarize the factual and procedural history of this case as follows. 

On October 27, 2016, at around 1 a.m., Pennsylvania State Police Trooper 

John McCombie was assigned to investigate a double homicide at a residence 

in Clymer, Pennsylvania. The victims were Timothy Gardner, found on the 

first floor, and Jacqueline Brink, found in a second-floor bedroom. It was 

further discovered that two children, unharmed, had been removed from the 
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residence by first responders. Trooper McCombie interviewed the decedents’ 

next-door neighbor, who witnessed I.T.S. leaving the scene.

I.T.S. indicated that he was contacted by one of the two adult codefendants to sneak out of his residence to meet up with them to purchase 

drugs from Gardner. Co-defendant Nathanial Price texted I.T.S. during the 

evening of October 26, 2016. The text read: “True I got real shit going down 

tonight. I need you to ride with me.” I.T.S. responded: “I’m a rider, bro. I 

told you from day one I’m about it.” Price texted, “Remember that convo we 

had a while back?” I.T.S. replied, “I can’t wait to find out. Like I’m pumped 

up for it, no backing out whatever it is.” Price then stated: “PPL will be 

dropping tonight.” I.T.S. responded, “I’m ready and my sis ain’t in bed yet, 

bro. Just be patient. I promise we will get it done tonight. The later the 

better, bro. This ain’t my first rodeo.”1 Subsequent texts concerned I.T.S.’s 

sneaking out of his house. Soon thereafter, I.T.S. rode in Price’s vehicle with 

Price and co-defendant Justin Stevenson to Gardner’s home. I.T.S. 

maintained that he thought these texts were about their plan to buy drugs. 

He claimed that he believed that the phrase “PPL will be dropping tonight” was 

in reference to dropping acid. 

I.T.S. was friends with Gardner and could facilitate the transaction; 

Gardner did not know the co-defendants. Once inside, Gardner went upstairs 

____________________________________________

1 At the time of the incident, I.T.S. was living in the care of his adult sister 

and her husband.
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to retrieve the drugs. When he came back downstairs, co-defendant 

Stevenson struck Gardner with a metal pipe (later discovered to be a “breaker 

bar”). This violent act caused I.T.S. to flee; he went outside where he made 

contact with a neighbor. I.T.S. originally stated that he walked back home, 

but he later confessed to waiting for the co-defendants in the car parked 

across the street. A few minutes later, the co-defendants left the residence 

with a lockbox. The defendants drove to a residence on Pellas Road. State 

police conducted a search of the Pellas house where they found evidence of 

the crime. An autopsy of the victims indicated that they bled to death after 

being struck by the breaker bar in the back of their heads.

I.T.S. was charged with two counts of criminal homicide and one count 

of criminal conspiracy to commit robbery – inflict serious bodily injury.2 He 

petitioned the court for decertification, seeking a transfer from criminal court 

to juvenile court. 

I.T.S. was nearly 18 years old at the time of the decertification hearing. 

That hearing was held before the trial court on August 16, 2017. I.T.S. 

presented four witnesses: Psychologist Dr. Joseph Roberts; I.T.S.’s football 

coach Robert Packer; co-worker Brian Schuller; and sister Hailee Beiler. The 

Commonwealth presented two witnesses: Psychiatrist Dr. Neil Blumberg; and 

Pennsylvania Department of Corrections’ counselor Amy Mottin. 

____________________________________________

2 18 Pa.C.S.A. §§ 2501(a) and 3701(a)(1)(i), respectively.
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In granting I.T.S.’s petition, the decertification court made the following 

factual findings:

At the time of the incident, [I.T.S.] had an active drug 

addiction issue. His substance abuse began at age 16. 

[I.T.S.] regularly abused marijuana, and experimented with 

other drugs, including LSD, cocaine, Xanax, MDMA, 

Klonopin, and Percocet. [I.T.S.] has never received drug 

and alcohol treatment. Except for the charging of the 

current offenses, [I.T.S.] has no juvenile or criminal record. 

As such, he has never received treatment, supervision, and 

rehabilitation available as dispositional alternatives under 

the Juvenile Act. [I.T.S.] has a history of school 

misconducts, however, [he] does not have a history of 

violent behaviors. 

***

The Court finds the testimony of [the Commonwealth’s 

expert witness] Neil Blumberg, M.D., LLC, to be credible 

with regard to the existence of mental disorders, including 

the existence of “Other Specified Personality Disorder with 

Borderline, Narcissistic and Antisocial Features,” and that 

“there is little likelihood of a significant change in his 

personality structure in less than three years.” However, 

the Court is unable to determine the causal connection 

between this personality disorder and [I.T.S.’s] criminal 

behavior and/or risk of reoffending (as compared to the 

other six mental disorders found by Dr. Blumberg). This is 

especially true given the court’s finding with regard to 

[I.T.S.’s] level of culpability. Therefore, the Court will give 

this finding the appropriate weight. 

Given the findings above, [I.T.S.] is “amenable to 

treatment, supervision or rehabilitation as a juvenile.”

See Trial Court’s Order, 8/30/17, at 2-4 (citation omitted).
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The Commonwealth now presents us this timely appeal.3 Specifically, 

the Commonwealth asks us to determine:

I. Whether the Decertification court erred in law and/or 

committed a gross abuse of discretion in granting 

I.T.S.’s Petition to Transfer the Case from Criminal 

Proceedings to Juvenile Court Pursuant to 42 

Pa.C.S.A. §6322 where I.T.S. failed to establish by a 

preponderance of the evidence that transferring his 

case to the juvenile division would serve the public 

interest.

Commonwealth’s Brief at 4.

The Commonwealth argues the trial court erred in determining that 

I.T.S. met his burden at the hearing to warrant a transfer from criminal 

division to juvenile court. Specifically, the Commonwealth points to the trial 

court’s apparent acceptance of Dr. Blumberg’s conclusion that I.T.S. had little 

chance of remedying his mental disorders by the time the child turned 21. 

Conversely, the Commonwealth challenged the conclusion of defense expert, 

Dr. Roberts, who surmised that I.T.S.’s issues were extensions from an 

underlying drug addiction. Dr. Roberts testified that the addiction could be 

remedied prior to the expiration of the juvenile court’s jurisdiction. For the 

reasons that follow, we do not disturb the trial court’s determination that 

decertification is appropriate.

____________________________________________

3 The Commonwealth has certified that the trial court’s order will terminate 

or substantially handicap the prosecution. See Pa.R.A.P. 311(d). Both the 

Commonwealth and the trial court have complied with Pa.R.A.P. 1925.
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Our standard of review is well settled:

Decisions of whether to grant decertification will not be 

overturned absent a gross abuse of discretion. An abuse of 

discretion is not merely an error of judgment but involves 

misapplication or overriding of the law or the exercise of a 

manifestly unreasonable judgment passed upon partiality, 

prejudice or ill will.

Commonwealth v. L.P., 137 A.3d 629, 635 (Pa. Super. 2016) (citing 

Commonwealth v. Ruffin, 10 A.3d 336, 338 (Pa. Super. 2010)). Pursuant 

to 42 Pa.C.S.A. § 6322(a) and § 6355(e), when a juvenile has been charged 

with murder or a crime listed under paragraph 2(ii) or (iii) of the definition of 

“delinquent act” in 42 Pa.C.S.A. § 6302, the criminal division of the Court of 

Common Pleas is vested with jurisdiction. Id. Like murder, criminal 

conspiracy to commit robbery – inflict serious bodily injury is also an offense

that requires jurisdiction to vest in the criminal division. 42 Pa.C.S.A. § 6302. 

However, when jurisdiction vests with the criminal division under Section 

6302, the juvenile may seek a transfer to the juvenile system through the 

process of decertification. Id. (citing Ruffin, 10 A.3d at 338.) “In determining 

whether to transfer a case charging murder or any offense 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.” 42 Pa.C.S.A. § 6322(a). To assess whether a transfer will 

serve the public interest, the court considers the factors in Section 

6355(a)(4)(iii). Id.

Section 6355(a)(4)(iii) provides as follows.
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(iii) ... 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 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[.]

42 Pa.C.S.A. § 6355(a)(4)(iii).

This Court has further provided that:
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Although the Juvenile Act requires that a decertification 

court consider all of the amenability factors, it is silent as to 

the weight that should be assessed to each factor. The 

ultimate decision of whether to certify a minor to stand trial 

as an adult is within the sole discretion of the decertification 

court. A decertification court must consider all the factors

set forth in § 6355 of the Juvenile Act, but it need not 

address, seriatim, the applicability and importance of each 

factor and fact in reaching its final determination.

L.P., 137 A.3d at 635-36 (citing Ruffin, 10 A.3d at 339) (some citations 

omitted). 

In the present matter, largely undisputed are those facts pertaining to 

Section 6355(a)(4)(iii)(A)–(F), which take into consideration matters other 

than the juvenile’s amenability to treatment. The decertification court found 

that the crime, which resulted in two deaths, to be of the gravest impact on 

the victims and the community. See Trial Court’s Order, 8/30/17, at 1-2. The 

court found that although I.T.S. facilitated the meeting between the codefendants and the victim, I.T.S. fled at the first moment of violence. As 

such, he is not culpable for the infliction of physical harm that caused the 

victims’ deaths.4 Id. The court noted that I.T.S. had no previous criminal or 

juvenile record. Id. The court heard testimony that I.T.S. could receive 

treatment and be housed with age appropriate peers in either the adult or the 

juvenile system. 

The crux of the decertification decision – and thus the crux of this appeal 

– hinges on the amenability analysis of Section 6355(a)(4)(iii)(G)(I) – (IX). 

____________________________________________

4 The decertification court was careful not to comment on whether I.T.S. 

might be “legally culpable” for the death.
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Notably, within these subsections, still more facts are uncontested. I.T.S. was 

17 years, 218 days old at the time of the incident. He had no prior criminal 

record. The court found that I.T.S. possessed at least average intelligence 

and is average to above-average in maturity. He possessed the criminal 

sophistication to buy and use illicit drugs.

The main issue for the trial court concerned Section

6355(a)(4)(iii)(G)(VII): whether I.T.S. could be rehabilitated prior to the 

expiration of the juvenile court’s jurisdiction, i.e. before he turns 21 years old. 

At the date of the decertification order, the juvenile court’s jurisdiction would 

last approximately 2 years and 205 days, pursuant to the Juvenile Act, 42 

Pa.C.S.A. §6301, et seq. 

The amenability question can only be answered by first determining 

what treatment I.T.S. needs. The experts provided differing opinions on this 

issue. Dr. Blumberg, the Commonwealth’s expert, testified that I.T.S. 

possessed maladaptive traits that led to the impairment of social functioning. 

See N.T., 8/16/17, at 79. He explained that these interpersonal difficulties 

led to the child’s use of drugs, rebellion toward authority, impulsive behavior, 

lying and cheating in school. Id. Dr. Blumberg concluded that this antisocial 

behavior caused him to make a diagnosis of a personality disorder. Id. at 80. 

Critically, Dr. Blumberg testified that I.T.S. could not be successfully treated 

for a personality disorder within the requisite time, and that assumes the 

personality disorder can be successfully treated at all. Id. at 87.
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On the other hand, I.T.S.’s expert, Dr. Roberts, believed that I.T.S. 

could be successfully treated within the statutory period. Although Dr. 

Blumberg argued that I.T.S. antisocial traits led to, or at least included, his 

criminal drug behavior, Dr. Roberts concluded that the antisocial traits are the 

results of I.T.S.’s drug abuse. Id. at 17-18. For Dr. Roberts, I.T.S.’s use of 

drugs from a relatively early age was another reason why he disagreed with 

Dr. Blumberg’s diagnosis of a hard-to-treat personality disorder. Id. at 18. 

Dr. Roberts testified that because I.T.S. does not have a history of violence, 

aggression or even a temper, Dr. Roberts was left to believe that I.T.S.’s 

antisocial traits – e.g., disobeying his curfew, slacking off in school – can be 

framed as an outgrowth from the underlying substance abuse issue. Id. at 

19; 126. Dr. Roberts testified further that juveniles with substance abuse 

issues have a good success rates when the juvenile shows motivation to 

improve. Id. In his opinion, I.T.S. possesses the requisite motivation to 

change. Id.

Likewise, the experts also opined on I.T.S.’s level of capability and risk 

to the community. Dr. Roberts testified that I.T.S.’s fleeing at the first sign 

of violence spoke to his capability – or lack thereof – to cause harm to others 

or the community. Id. at 25. Even Dr. Blumberg acknowledged that the 

determination of whether I.T.S. is amenable to treatment necessarily depends 

on which set of facts the court believes. Id. at 86. He explained that if the 

court believed that I.T.S. was an unwitting participant to the murders, then 

perhaps the juvenile system would be the reasonable forum. However, if the 
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court believed I.T.S. was much more involved in the crime, and knew it might 

involve violence, then he would present a more pathological disorder, the 

treatment of which would not be successful in the juvenile system. Id. at 83; 

86.

The answers to these questions are squarely in the purview of the factfinder. Moreover, once the facts are found, it is up to the trial decertification 

court to assign them weight. L.P., supra. Indeed, the trial court concluded 

that I.T.S.’s antisocial traits were indicative of a borderline personality 

disorder, which suggests that I.T.S. would be unlikely to change in less than 

three years. See Trial Court’s Order, 8/30/17, at 3. However, the court was 

not persuaded that I.T.S.’s personality disorder led to any past or present 

criminal behavior. In fact, as the court noted, I.T.S. had no prior criminal 

record and no history of violence. Id. Rather, the court noted I.T.S.’s rather 

substantial drug abuse which started at a young age and was never treated; 

led to his involvement in this criminal case. The court further believed that 

I.T.S. could be treated for his drug abuse within the time frame of the juvenile 

court’s jurisdiction. Id. Given these considerations, combined with the court’s 

thorough analysis regarding the other Section 6355 factors, we discern no 

gross abuse of discretion. We therefore affirm the trial court’s order 

transferring I.T.S.’s case to juvenile court.

Order affirmed.

Judge Lazarus joins this Memorandum.

P.J.E. Stevens files a Concurring Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/25/2018