J-A27033-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

TONITA HENDERSON 

 Appellant No. 860 WDA 2013 

Appeal from the Judgment of Sentence Entered February 5, 2013 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No: CP-02-CR-0015719-2011 

BEFORE: BOWES, OLSON, and STABILE, JJ. 

MEMORANDUM BY STABILE, J. FILED JULY 21, 2016 

 Appellant, Tonita Henderson, appeals from the judgement of sentence 

entered February 5, 2013, following her convictions of two counts of 

robbery, one count of receiving stolen property, and one count of criminal 

conspiracy.1 Upon review, we affirm. 

On November 29, 2011, Appellant was charged with two counts of 

robbery, one count of receiving stolen property, and one count of criminal 

conspiracy.2 At the time she was charged, Appellant was seventeen years 

old and less than three months from her eighteenth birthday. Appellant’s 

____________________________________________ 

1

 18 Pa.C.S.A. §§ 3701, 3925, and 903, respectively.

2

 Unless another source is cited, these facts are taken from pages one 

through four of the trial court’s November 26, 2014 Pa.R.A.P. 1925(a) 

opinion. 
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case was initiated in criminal court. Appellant petitioned the trial court to 

transfer her case to juvenile court. Following a decertification hearing, her 

petition was denied. A non-jury trial was held on November 7, 2012, after 

which Appellant was found guilty of all charges. The trial court requested a 

presentence investigation report (PSI) for use in fashioning Appellant’s 

sentence. The PSI included Appellant’s prior juvenile adjudications. 

Following a sentencing hearing, the trial court sentenced Appellant to a 

period of incarceration of not less than six and one-half nor more than 

thirteen years to be followed by a period of probation of seven years. 

Appellant filed post-sentence motions which were denied. Appellant timely 

appealed to this Court and, as ordered, filed a Rule 1925(b) statement 

wherein she raised seven claims of error. The trial court issued a Pa.R.A.P. 

2915(a) opinion. 

Appellant now raises four issues for our review: 

1. Whether the juvenile decertification process is 

unconstitutional as it does not allow for the minor child to 

have a jury conclude beyond a reasonable doubt that the 

juvenile should be subjected to an adult penalty beyond the 

juvenile statutory maximum penalty in violation of the minor 

child’s Sixth Amendment rights? 

2. Whether placing the burden of proof on a juvenile defendant 

in a decertification process violates both the juvenile’s 

procedural and substantive due process rights? 

3. Whether the process of obtaining a second expert witness 

violated Miss Henderson’s Constitutional rights under the 

Equal Protection Clause of the Fourteenth Amendment? 
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4. Whether Section 303.6 of the Sentencing Guidelines violates 

the 8th Amendment to the United States Constitution and 

Article 1, Section 13 of [sic] Constitution of the 

Commonwealth of Pennsylvania in light of Roper v. 

Simmons, [543 U.S. 551 (2005),] Graham v. Florida, [560 

U.S. 48 (2010),] and Miller v. Alabama, [132 S.Ct. 2455 

(2012)]? 

Appellant’s Brief at 5-6. 

Initially, we note that an appellant bears a heavy burden to prove a 

statute unconstitutional. “[A] statute is presumed to be constitutional and 

will not be declared unconstitutional unless it clearly, palpably and plainly 

violates the Constitution.” Commonwealth v. Cotto, 753 A.2d 217, 219 

(Pa. 2000). Additionally, “there is no constitutional guarantee to special 

treatment for juvenile offenders. Any right to treatment as a juvenile is 

derived from statutory law and is defined by the legislature.” In Interest 

of J.F., 714 A.2d 467, 470 (Pa. Super. 1998). 

The legislature, through the Juvenile Act, placed adjudication of 

delinquent acts when the defendant is a child automatically within the 

jurisdiction of juvenile court. 42 Pa.C.S.A. § 6322(a). However, Section 

6302 of the Juvenile Act excludes robbery from the definition of a delinquent 

act where, as in this case, a deadly weapon was used in the commission of 

the offense. See 42 Pa.C.S.A. § 6302 “Delinquent Act” (2)(ii)(D); see also

18 Pa.C.S.A. § 3701 (relating to robbery). Prosecution for an offense 

excluded from the definition of a delinquent act commences in criminal court 

rather than in juvenile court. 42 Pa.C.S.A. § 6322(a); see also 

Commonwealth v. Ramos, 920 A.2d 1253, 1258 (Pa. Super. 2007) 
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(“[W]hen the crime involved is one excluded from the Juvenile Act’s 

definition of a delinquent crime, the charge is automatically within the 

jurisdiction of the criminal court and jurisdiction is presumptively proper.”). 

When a criminal court has jurisdiction over a crime committed by a 

juvenile pursuant to 42 Pa.C.S.A. § 6322(a), the juvenile may request that 

her case be decertified, i.e., removed to the jurisdiction of juvenile court. 

Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003). This 

process has been upheld as constitutional by this Court and our Supreme 

Court. See Cotto, 753 A.2d at 217, 222 (holding as constitutional the 1995 

Amendments to the Juvenile Act which vest original jurisdiction in the 

criminal courts for specified violent felonies and granting the decision-maker 

discretion in determining whether to transfer a direct file case to juvenile 

court); see also Commonwealth v. Aziz, 724 A.2d 371, 374 (Pa. Super. 

1999), appeal denied, 759 A.2d 919 (Pa. 2000) (“We find that the 

amendments to the Act, which cause juveniles accused of the enumerated 

offenses to appear first in criminal court, are not arbitrary and instead are 

rationally related to the statute’s objectives.”). 

Appellant first argues that the decertification process is 

unconstitutional as violating the Sixth Amendment because a judge rather 

than a jury decides decertification. Appellant bases this claim on our United 

States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 

(2000) which, in her words, “conclude[es] that a sentencing factor that has 

the potential to enhance the punishment triggers Sixth Amendment 
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protections. . . .” Appellant’s Brief at 15. Essentially, Appellant argues that 

the denial of decertification is a factor that could enhance a sentence beyond 

the statutory maximum allowed for a juvenile and, therefore, under 

Apprendi, only a jury may deny decertification. Appellant’s Brief at 19. 

The United States Supreme Court’s decision in Apprendi concerned a 

statute that authorized a judge to increase the maximum sentence after a 

jury’s verdict based on the judge’s finding, by a preponderance of the 

evidence, of the fact that the crime was racially motivated. Apprendi, 120 

S.Ct. at 2348. We previously summarized the rule established by Apprendi

and its progeny as follows. 

In the watershed Apprendi case, the Supreme Court held that 

any fact except a prior conviction that increases the range of 

punishment beyond the statutory maximum penalty for that 

crime must be charged in an indictment, submitted to the jury, 

and proven beyond a reasonable doubt. The Court further 

defined the term statutory maximum in Blakely v. 

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 

(2004). According to the Blakely Court, the statutory maximum 

is the maximum sentence a court can impose based solely on 

the facts reflected by the jury verdict or admitted by the 

defendant during his guilty plea. 

Commonwealth v. Stokes, 38 A.3d 846, 858-59 (Pa. Super. 2011). 

Appellant’s reliance on Apprendi is misplaced. Decertification is a 

legislatively established procedure whereby a judge must consider a 

juvenile’s amenability to treatment within the juvenile system as delineated 

by statutorily defined factors. 42 Pa.C.S.A. § 6355(a)(4)(iii). Decertification 

is not a fact that increases the maximum penalty that may be imposed as 
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already determined by a jury’s verdict or an accused’s guilty plea. Indeed, a 

judge does not make any findings of fact regarding elements of the crimes 

charged during the decertification process. Further, there is no jury involved 

in this process. Apprendi, therefore, is factually and legally distinguishable 

from the instant case. As such, Appellant is not entitled to relief on her first 

issue. 

Appellant next argues that placing the burden of proof on a juvenile 

defendant in the decertification process violates both the juvenile’s 

procedural and substantive due process rights. In Cotto, our Supreme 

Court addressed and rejected this issue and held as follows. 

[T]he legislature has determined in its judgment that, in certain 

instances, violent felonies in addition to murder are sufficiently 

serious to merit vesting original jurisdiction in the criminal 

courts, while affording the defendant an opportunity to show 

that his is the exceptional case warranting juvenile treatment. 

 . . . . 

. . . [T]he legislature’s informed determination that juveniles 

fifteen years of age and older who commit such offenses are not 

initially amenable to rehabilitation under the Juvenile Act, unless 

they prove otherwise by a preponderance of the evidence, is 

equally reasonable. There is nothing in the Constitution to 

prevent the legislature from making such a judgment. 

Cotto, 753 A.2d at 223-24. 

Appellant acknowledges that Cotto is controlling on this issue, but 

asks us to reconsider our Supreme Court’s holding. Appellant’s Brief at 24. 

This Court, however, has a “duty and obligation to follow the decisional law 

of [the Supreme Court of Pennsylvania].” Commonwealth v. Shaffer, 734 
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A.2d 840, 844 n.6 (Pa. 1999). Because Cotto considered and resolved 

Appellant’s second issue, we are bound by our Supreme Court’s holding in 

Cotto, and Appellant is not entitled to relief on this claim.3

Appellant contends in her third issue that requiring her to petition the 

trial court to grant funds for a second expert witness violated her 

constitutional rights under the Equal Protection Clause of the Fourteenth 

Amendment. Specifically, Appellant argues that as a client of the Allegheny 

County Office of Conflict Counsel (OCC), she is similarly situated to clients of 

the Public Defender’s Office (PDO), as they are all individuals who qualify for 

but cannot afford representation. Appellant alleges that, because a second 

expert witness could have been obtained had she been represented by the 

PDO given the PDO’s self-regulated budget, she was placed in a second class 

where she was required to petition the court for funds for an additional 

expert witness as a client of the OCC. Appellant’s Brief at 31-32. Appellant 

claims this violated her Equal Protection Rights because, under the 

Fourteenth Amendment, “like persons in like circumstances will be treated 

____________________________________________ 

3

 To the extent that Appellant relies on Roper, Graham, and Miller to 

support her argument that “juveniles are constitutionally distinct from 

adults,” and therefore it is unconstitutional to shift the burden of proof in 

decertification onto juvenile defendants, these cases are easily 

distinguishable from the one sub judice as the foregoing only address 

juvenile sentencing. Appellant’s Brief at 24; Commonwealth v. Batts, 125 

A.3d 33, 37 (Pa. Super. 2015). None of these cases pertains to the juvenile 

decertification process. 
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similarly” unless “there be a rational basis for policy distinctions between 

similarly situated individuals.” Appellant’s Brief at 30. 

The starting point of an equal protection analysis is a determination of 

whether the State has created a classification for unequal distribution of 

benefits or imposition of burdens. Commonwealth v. Parker White Metal 

Co., 515 A.2d 1358 (Pa. 1986). Appellant claims to be a member of a class 

consisting of indigent persons represented by the OCC who are similarly 

situated to those indigent persons represented by the PDO. Appellant claims 

differential treatment as a member of the OCC class because her request for 

a second expert requires court approval, whereas approval is not required 

for those represented by the PDO. It is established that the action of state 

courts may be regarded as State action within the meaning of the 

Fourteenth Amendment. See Shelley v. Kramer, 334 U.S. 1 (1948). The 

question preliminarily which remains to be answered however, is whether 

the Appellant’s challenge to the trial court’s action was based upon 

differentiating her in a class from others similarly situated. Appellant fails to 

satisfy this preliminary consideration to sustain an equal protection claim. 

While Appellant challenges the action of the trial court in refusing a 

second expert, Appellant does not explain how the trial court created 

separate classifications of people for making expert witness determinations 

for equal protection purposes. The decision to deny Appellant a second 

expert was based upon the trial court’s individualized review of Appellant’s 
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request for a second expert. The request was denied after the trial court 

determined Appellant was merely shopping for another expert to provide a 

more favorable opinion than the first expert that was court funded. The trial 

court correctly noted, citing Commonwealth v. Chester, 733 A.2d 1242, 

1252 (Pa. Super 1999), that a defendant is not entitled to unlimited court 

appointed experts until he finds one that renders the opinion he desires. 

This individualized determination was not based upon any class created by 

the trial court. Nor does Appellant establish that other persons represented 

by the OCC would have had similar requests for expert approval declined as 

a result of their membership in her purported class. Moreover, Appellant 

provides no proof that the PDO in fact would have retained a second expert 

on her behalf to establish disparate treatment of her as a purported class 

member represented by the OCC. “A person who brings an action under the 

Equal Protection clause ‘must show intentional discrimination against him 

because of his membership in a particular class, not merely that he was 

treated unfairly as an individual.’" Murray v. Pittsburgh Bd. of Public 

Educ., 919 F. Supp. 838, 847 (W.D. Pa. 1996) (citation omitted). A review 

of Appellant’s claim reveals no more than an individualized determination on 

whether a second expert would be approved. This individualized 

determination was not dependent upon membership in a class. 

It further is conceded that representation of Appellant by the OCC was 

necessitated by a conflict within the PDO office. To the extent Appellant can 
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claim the establishment of similarly situated classes, a representational 

conflict within the PDO necessitating separate representation by the OCC, is 

grounded upon a rational basis that does not offend equal protection. A 

State can, consistent with the Fourteenth Amendment, provide for 

differences so long as the result does not amount to a denial of due process 

or invidious discrimination. Douglas v. California, 372 U.S. 353 (1963). 

Absolute equality is not required. Id. As Appellant fails to establish the 

essential predicates for an equal protection claim, her claim fails.4

 Appellant’s final issue is that the Pennsylvania Sentencing Guidelines 

are unconstitutional as applied to juvenile defendants. Appellant’s Brief at 

42. Appellant argues that, together, Roper, Graham, and Miller 

established the rule that, under the Eighth Amendment, criminal procedure 

laws, including sentencing guidelines, must consider an offender’s age. 

Appellant’s Brief at 39-40. Appellant claims that it is therefore 

unconstitutional for Section 303.6 of the Pennsylvania Sentencing 

Guidelines5 to mandate using her juvenile offenses to calculate her prior 

record score for use in criminal court. Appellant’s Brief at 34-38. 

____________________________________________ 

4

 In light of our disposition of Appellant’s equal protection claim, we need not 

determine whether Appellant properly preserved this issue due to 

inadequate briefing. 

5

 Section 303.6 of the Pennsylvania Sentencing Guidelines provides, in 

pertinent part, as follows: 

(Footnote Continued Next Page) 
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Appellant’s claim that the United States Supreme Court decisions in 

Roper, Graham, and Miller require that our sentencing guidelines, as 

applied to juveniles, be held unconstitutional requires impermissible 

extensions and leaps of logic from the holdings in those cases. Roper held 

that the death penalty is disproportionate punishment for offenders under 

18, and that imposing such punishment was a violation of the Eight 

Amendment. When a juvenile commits a heinous crime, the State can exact 

forfeiture of some of the most basic liberties, but the State cannot extinguish 

his life. In Graham the Court held that the Eighth Amendment does not 

permit a juvenile offender to be sentenced to life in prison without parole for 

a non-homicide crime. The Constitution prohibits the imposition of a life 

without parole sentence on a juvenile offender who did not commit 

homicide. While a State need not guarantee the offender eventual release, 

if it imposes a sentence of life it must provide him or her with some realistic 

opportunity to obtain release before the end of that term. 

(Footnote Continued) _______________________ 

Prior juvenile adjudications are counted in the Prior Record Score 

when the following criteria are met: (1) The juvenile offense 

occurred on or after the offender’s 14th birthday, and (2) There 

was an express finding by the juvenile court that the 

adjudication was for a felony or one of the Misdemeanor 1 

offenses listed in § 303.7(a)(4). 

204 Pa. Code § 303.6. 
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In Miller, the Court recognized that Roper and Graham established 

that children are constitutionally different from adults for sentencing 

purposes and that its individualized sentencing decisions make clear that a 

judge or jury must have the opportunity to consider mitigating 

circumstances before imposing the harshest possible penalty for juveniles. 

By mandating that all children convicted of homicide receive lifetime 

incarceration without possibility of parole, regardless of their age and agerelated characteristics and the nature of their crimes, such sentencing 

schemes violate the principle of proportionality, and hence, the Eighth 

Amendment’s ban on cruel and unusual punishment. Our State Supreme 

Court recently clarified that “Miller’s holding is narrow,” and that it “would 

not expand the holding of Miller absent a common law history or a 

legislative directive.” Batts, 125 A.3d at 38. The Court specifically held 

that “Miller requires only that there be judicial consideration of the 

appropriate age-related factors set forth in that decision prior to the 

imposition of a sentence of life imprisonment without the possibility of parole 

on a juvenile.” Id. The Court declined to change the “legal consequences 

for the actions of minors” based on the “policy considerations” raised by 

Miller stating, “[i]n Pennsylvania, subject to the limits of the Constitution, 

such matters are generally reserved, in the first instance, to the General 

Assembly.” Commonwealth v. Hale, 2015 WL 9284110, at *4 (Pa. 2015). 

The common thread running through Roper, Graham, and Miller, is 

that the harshest of penalties imposed upon juveniles in those cases cannot 
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withstand scrutiny for proportionality under the Eighth Amendment. The 

rationales for rejecting the outer limits of sentencing in those cases in no 

manner can be construed as an invitation to invalidate consideration of all 

factors that may bear upon an appropriate sentence for a juvenile sentenced 

as an adult as in this case. Moreover, requiring consideration of a juvenile’s 

prior offenses to calculate a prior record score is not the same as mandating 

a certain sentence. The weight given a prior record score goes to the 

discretion of a sentencing court in fashioning an appropriate sentence.6 The 

Court in Roper, Graham, and Miller, did not disturb a sentencing court’s 

ability to consider all factors when sentencing a juvenile. In fact, those 

decisions emphasize the need for individualized consideration in juvenile 

sentencing, a point that cuts directly against the argument Appellant 

presently makes. 

 As previously stated, “a statute is presumed to be constitutional and 

will not be declared unconstitutional unless it clearly, palpably and plainly 

violates the Constitution.” Cotto, 753 A.2d at 219. In Commonwealth v. 

Smith, 481 A.2d 1365 (Pa. Super. 1984), this Court addressed the 

contention that under the Juvenile Act, juvenile records and adjudications 

____________________________________________ 

6

 To the extent Appellant’s argument raises a challenge to the discretionary 

aspects of her sentence, Appellant has made no such claim, and if her 

argument could be considered as raising such a claim, we would deem it 

waived for not properly preserving this issue for review. See 

Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013). 
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should not be regarded as criminal acts for purposes of sentencing. In 

rejecting that proposition, we stated, 

The intention of the Legislature is clear in its adoption of 

the policy which not only allows but requires examination of a 

defendant’s juvenile record in fashioning appropriate sentences. 

 . . . . 

It is clearly the intent of the Legislature that a child who 

continues his pattern of serious and violent anti-social activity 

into adulthood, should not receive the benefit of a cloak of 

immunity regarding that behavior, when it is relevant to 

predicting future behavior and the public safety is at risk. 

Until and unless the mandate to utilize juvenile records as 

a sentencing aid is legislatively reversed, it remains incumbent 

upon the sentencing courts to obey it. 

Id. at 1366. In light of the foregoing and the legislative purpose to be 

served by permitting consideration of prior juvenile records in sentencing, 

we decline Appellant’s invitation to extend the holdings of Roper, Graham, 

and Miller to find that Section 303.6 of the Pennsylvania Sentencing 

Guidelines is unconstitutional as applied to juveniles. 

Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/21/2016 
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