Commonwealth v. Taylor, N., Aplt.

[J-97-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 29 MAP 2019
:
Appellee : Appeal from the Order of Superior
: Court at No. 856 EDA 2017 dated
: September 10, 2018 Affirming the
v. : Judgement of Sentence dated
: January 31, 2017 by the
: Montgomery County Court of
NAZEER TAYLOR, : Common Pleas, Criminal Division, at
: No. CP-46-CR-3166-2014.
Appellant :
: ARGUED: November 19, 2019

OPINION

JUSTICE WECHT DECIDED: May 19, 2020

This appeal asks whether a minor’s Fifth Amendment privilege against compulsory

self-incrimination was violated when a juvenile court granted the Commonwealth’s

request to have a delinquency matter transferred to an adult court for criminal

prosecution, based in part upon the minor’s decision not to admit culpability to the

delinquent acts alleged. We hold that it was.

I.

The events that formed the basis of Nazeer Taylor’s prosecution occurred between

July 2012 and August 2013, when he was fifteen years old. In March 2014, the

Commonwealth filed a delinquency petition alleging that Taylor committed numerous

delinquent acts purportedly stemming from recurring incidents of sexual assault of his
then-eleven-year-old foster brother, A.O. Pursuant to Section 6355 of the Juvenile Act,

42 Pa.C.S. § 6355, the Commonwealth petitioned the Court of Common Pleas of

Montgomery County, Juvenile Court Division, to transfer the delinquency petition to the

adult division for criminal prosecution.

A two-day certification hearing commenced on April 2, 2014, before the Honorable

Joseph A. Smyth. At the hearing, A.O. testified that Taylor orally and anally sodomized

him on several occasions when A.O. was in sixth grade, resulting in chronic physical

damage and severe mental anguish. Notes of Testimony (“N.T.”), 4/2/2014, at 6-77. The

boys’ foster mother also described a number of discrete episodes that piqued her

suspicions that Taylor might have engaged in improper behavior with A.O. Id. at 77-112.

In light of this testimony, the juvenile court found that the Commonwealth had established

a prima facie case that Taylor had committed the delinquent acts alleged in the petition.

Id. at 114-15. Due to Taylor’s prior delinquency adjudication for burglary, a first-degree

felony, the burden shifted to the defense to establish that transfer would not serve the

public interest. See 42 Pa.C.S. § 6355(g).1

1 In a typical case, the Juvenile Act places upon the Commonwealth “[t]he 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.” 42 Pa.C.S. § 6355(g). The Commonwealth
is relieved of that burden, however, under the following conditions:

(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

[J-97-2019] - 2
 The hearing was continued to April 25, 2014, for Taylor’s rebuttal. To substantiate

Taylor’s claim that he was amenable to treatment in the juvenile system, the defense

offered the expert testimony of Dr. Nicole Machinski, a licensed clinical psychologist who

specializes in forensic assessment, including the identification and treatment of juvenile

sex offenders. N.T. 4/25/2014, at 4, 9. Based upon her evaluation of Taylor and her

review of the underlying record, Dr. Machinski opined that Taylor “could certainly be

treated” in the three years he had remaining “under the purview of the juvenile justice

system” through either an outpatient or residential treatment program, which average

“about 12 months” in length. Id. at 21-22. Upon cross-examination, the Commonwealth

challenged Taylor’s amenability to treatment by, inter alia, invoking the fact that Taylor

had neither admitted to the delinquent act nor affirmatively taken responsibility for his

actions. Specifically, the Commonwealth suggested that Taylor was “in denial” of his

need for treatment, prompting a defense objection, which the court sustained. Id. at 44.

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.

Id. § 6355(g)(1)-(2). When the foregoing “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
shall rest with the child.” Id. The parties do not dispute that the transfer statute’s burden-
shifting criteria were satisfied here.

[J-97-2019] - 3
The Commonwealth subsequently posited that “the first step in sex offender treatment [is]

admitting guilt,” id. at 58, and, after the close of evidence, reiterated its view that Taylor

was “in denial” and that an “admission” would be necessary for treatment to work in this

case. Id. at 109.

The juvenile court agreed with the Commonwealth that Taylor was not amenable

to treatment within the juvenile system, certified the matter to adult criminal court, and

contemporaneously offered the following rationale in support of its ruling:

I think one of the Commonwealth’s arguments is that the defendant has
been in treatment for almost every issue that the defendant’s expert has
identified and, notwithstanding that treatment, within six months committed
a series of forcible rapes, which is much more serious than the issue he
was in treatment for.

I think the defense expert makes a distinction, and so does the defendant
-- or they make a good point, not necessarily a distinction -- when they say,
look, the sex offense is totally different than the burglary. And because
someone was successful in a burglary, that’s not at all related to the sexual
offense, and he never really got treatment for the sexual offense. That’s
basically the argument as I understand it.

And I don’t necessarily disagree with that, but then I think the defense expert
becomes a little bit inconsistent and sort of goes back and forth where she
counters that particular Commonwealth with [sic] you can’t compare these
other matters to a sex offense, but then she goes back and forth and says
but because he did well in treatment in the other matters, he will do well for
treatment as a sex offender. So in one sense, she tries to separate the two,
and then in another sense, she tries to blend the two, and I find that
testimony to be inconsistent.

I think another dilemma or conundrum for the defense is that’s their
approach, he’s had an unfortunate upbringing, through no fault of his own.
To a [] certain extent, he is antisocial and damaged, and that’s not his fault.
But is he so damaged that he can’t be rehabilitated for a sex offender, or
can he be rehabilitated for a sex offender? And I think part of the dilemma
is they don’t distinguish sex offenders from burglary, so now they blend their
argument and say because he’s done well in the first, he can do well in the
second.

[J-97-2019] - 4
 And they won’t admit that he’s committed the sex offense, and that’s
sort of their conundrum, because time is of the essence. He’s
approaching 18 years old. The act -- you can argue degree of sophistication
all you want, but it was a predatory damaging act that occurred repeatedly
over a 1-year period of time.

If you’re going to go on the sex offenders’ treatment, it’s important
that you admit, No. 1; examine your triggers, No. 2; talk about how you
can avoid your triggers; and identify up-front the depth of the problem. And
here, we can’t identify the depth of the problem largely because we’re
not admitting yet that there is a problem.

What if he were to sit there for a year and a half before he finally
admitted that he did something? I mean, I assume he’s still denying.
Counsel’s arguments have been phrased “if this is true, it’s a horrendous
act.”

They made a distinction when he denied, when he said to Dr. Buxbaum
-- I believe he was a psychiatrist -- “I didn’t do anything wrong.” Counsel
said now he wants to say he participates in treatment and defense counsel
argued, well, maybe the treatment’s not talking about sex offenders’
treatment. And that’s the very issue, though, is he amenable to sex
offenders’ treatment? And, in the juvenile system, time is running out. As I
said, there is only a few years left, and the depth -- and if he doesn’t make
sufficient progress, he’s 21, he’s back on the streets, and he’s released from
the jurisdiction of the Court with no supervision at all. That’s the dilemma.

And when Dr. Machinski in her report indicates the issues that he needs
treatment in and the Commonwealth argues, well, none of this has to do
with amenability within the statute, well, it might, when you have four other
categories. It would certainly refer to amenability for a crime that’s much
less serious than this. But I don’t know that it means anything with regard
to somebody who’s committed the type of act that he’s alleged to have
committed.

So for all the reasons in the statute as enumerated by [the Commonwealth]
and because it’s the defense burden of proof, I’m going to grant the
Commonwealth’s motion to certify him to adult court. Thank you.

Id. at 112-15 (emphasis added).

Following certification, from June 20-21, 2016, Taylor was tried before a jury, with

the Honorable William R. Carpenter presiding. At the conclusion of trial, the jury found

Taylor guilty of rape of a child and some related crimes. On January 31, 2017, the court

[J-97-2019] - 5
sentenced Taylor to an aggregate term of ten to twenty-five years’ imprisonment, followed

by ten years’ probation. Taylor appealed his judgment of sentence.

In an unpublished decision, the Superior Court affirmed. Commonwealth v. Taylor,

856 EDA 2017, 2018 WL 4290127 (Pa. Super. Sept. 10, 2018). Relevant here, Taylor

asserted that the juvenile court violated his Fifth Amendment privilege against compulsory

self-incrimination when deciding whether to transfer the matter by relying substantially

upon Taylor’s refusal to admit to the alleged offenses. The panel noted that “[a]lthough

Taylor did not raise this claim in his [Pa.R.A.P.] 1925(b) statement, he did not waive it.

Whether certification is proper is a question of jurisdiction, which cannot be waived.” Id.

at *5 (citing Commonwealth v. Johnson, 669 A.2d 315, 320 (Pa. 1995) (“[T]he decision to

transfer a case between the juvenile and criminal divisions in jurisdictional.”)). Turning to

the merits, the court acknowledged that it previously had held that the privilege against

self-incrimination applied in decertification proceedings, which require the same

amenability-to-treatment analysis for juvenile defendants.2 In Commonwealth v. Brown,

26 A.3d 485 (Pa. Super. 2011), a homicide case involving an eleven-year-old appellant,

the panel reversed an order denying decertification because the trial court relied upon the

Commonwealth’s expert witness, who had testified that Brown needed to admit guilt in

order to prove his amenability to treatment in the juvenile system. The Superior Court

2 Because the Juvenile Act excludes certain crimes, such as murder, from the
definition of “delinquent act,” 42 Pa.C.S. § 6302, jurisdiction over such cases is vested in
adult criminal court in the first instance. A juvenile so charged may petition the trial court
to decertify the case and have the matter transferred to the juvenile court for adjudication.
The standards for certification apply with equal force in the decertification context. See
id. § 6322(a).

[J-97-2019] - 6
reasoned that, by holding Brown’s failure to incriminate himself against him, the court

violated his Fifth Amendment privilege. Id. at 510.

Here, the juvenile court similarly “referenced Taylor’s failure to admit guilt and that

admission was a step in sex offender treatment.” Taylor, 2018 WL 4290127 at *6. Citing

Brown, the Superior Court succinctly concluded that “[t]his was error.” Id.

Notwithstanding that “impermissible consideration,” however, the panel determined that

the juvenile court did not abuse its discretion in finding that Taylor had failed to carry his

burden to establish that his case should remain in the juvenile system. The panel

reasoned that the juvenile court’s ruling was based upon the totality of the evidence

presented at the hearing, which included “the seriousness of the alleged crime, the time

remaining in the court’s jurisdiction, and the failure of Taylor’s previous treatment to

prevent the alleged crimes.” Id. Accordingly, despite the juvenile court’s erroneous

invocation of Taylor’s silence, the Superior Court affirmed the order certifying his transfer

to adult court.

We granted Taylor’s petition for allowance of appeal in order to consider whether

the juvenile court violated the Fifth Amendment by considering Taylor’s silence in deciding

whether to certify the case for transfer to adult court for prosecution, an issue of first

impression in this Court, and one of great importance to the Commonwealth.3

3 Specifically, we granted review of the following questions, rephrased for clarity:

a. Does a juvenile court violate the Fifth Amendment by holding a
juvenile’s failure to admit guilt against him during a certification
hearing?

b. Did the Superior Court erroneously conclude that a juvenile court
does not abuse its discretion by holding a juvenile’s failure to admit

[J-97-2019] - 7
 II.

A.

Taylor acknowledges that the Commonwealth satisfied the initial prerequisites for

certification—namely, that it established a prima facie case that, when Taylor was at least

fifteen years of age, he “committed a delinquent act which, if committed by an adult, would

be classified as” one of the enumerated felonies under Section 6355(g)(1)-(2)—thus

shifting the burden to Taylor to demonstrate his amenability to treatment within the

juvenile system. He insists, however, that the defense carried its burden on rebuttal

through the expert testimony of Dr. Machinski. He also notes that even the

Commonwealth’s expert, Michael Yoder, a supervisor with Montgomery County Juvenile

Probation, conceded on cross-examination that treatment within the juvenile system could

work for Taylor and “made it clear that his opinion [on Taylor’s amenability to treatment]

was squarely and solely based on the fact that Taylor had not admitted to the crime

charged.” Brief for Taylor at 21 (citing N.T., 4/25/2014, at 99).

Focusing upon Yoder’s testimony that there was insufficient time left within the

jurisdiction of the juvenile court, Taylor maintains that the expert’s opinion was premised

upon the ostensible significance of his refusal to admit to the crimes alleged. Id. The

Commonwealth’s argument to the juvenile court similarly stressed his lack of a

confession—a factor upon which Taylor claims the court placed great weight. Id. at 22

(observing that four of the ten paragraphs of the court’s analysis were “devoted to the fact

guilt against him during a certification hearing because the court also
considered other statutorily-required factors when making its
certification decision?

Commonwealth v. Taylor, 204 A.3d 361 (Pa. 2019) (per curiam).

[J-97-2019] - 8
that Taylor had never admitted to committing the crimes he pled not guilty to, and also

that Taylor’s attorney had not admitted in open court that Taylor committed the alleged

crimes”). In fact, Taylor argues, “while the juvenile court’s remarks can be difficult to

parse, the juvenile court actually gives no reason for its decision other than Taylor’s

refusal to incriminate himself.” Id. Therefore, Taylor posits that the lower court not only

misapplied the certification statute, but also violated his Fifth Amendment privilege

against self-incrimination.

Furthermore, Taylor disputes the notion that we must ask “whether” the Fifth

Amendment applies to juvenile transfer hearings, noting that its applicability was

established by the Supreme Court of the United States more than half-a-century ago in

Kent v. United States, 383 U.S. 541 (1966) (holding that juvenile transfer proceedings are

subject to the guarantees of due process), and in In re Gault, 387 U.S. 1, 47-48 (1967)

(holding that the Fifth Amendment applies to juveniles and may be “claimed in any

proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory”)

(quoting Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 94 (1964)).

See Brief for Taylor at 24 (citing Gault, 387 U.S. at 47 (“It would indeed be surprising if

the privilege against self-incrimination were available to hardened criminals but not to

children. The language of the Fifth Amendment . . . is unequivocal and without exception.

And the scope of the privilege is comprehensive.”)). From this authority, Taylor deduces

that “it is clear that the Fifth Amendment ‘applies’ to a certification hearing.” Id. at 24

(citing Commonwealth v. Batty, 393 A.2d 435, 439 n.3 (Pa. 1978)).

Taylor asserts that he was penalized for failing to incriminate himself in breach of

the Fifth Amendment. He suggests that there is “no precedent from a single state across

[J-97-2019] - 9
our nation which has countenanced such a penalty for invoking one’s Fifth Amendment

right.” Id. at 25 (citing Christopher P. v. State, 816 P.2d 485, 488 (N.M. 1991) (“[W]e find

no precedents [in any jurisdiction] sanctioning a court order compelling a child to make

inculpatory statements in the presence of the prosecution for any purpose.”)). He

underscores that the juvenile certification process holds “grave consequences” for a

minor and notes that, had he remained in the juvenile system, any supervision of him

would have ceased upon his twenty-first birthday. Id. His current sentence in the adult

system, by contrast, carries a minimum of thirty-five years’ supervision, including as much

as twenty-five years’ confinement in a state prison. Id. It is precisely these

considerations, he surmises, that led the Supreme Court to declare that a transfer

proceeding is a “‘critically important’ action determining vitally important statutory rights

of the juvenile.” Id. at 26 (quoting Kent, 383 U.S. at 556). Certification thus “has been

accurately characterized as ‘the worst punishment the juvenile system is empowered to

inflict.’” Id. (quoting Ramona R. v. Superior Court, 693 P.2d 789, 795 (Cal. 1985) (internal

citation omitted)). Because a defendant may not be penalized for the exercise of his right

to remain silent, id. (citing Wainwright v. Greenfield, 474 U.S. 284 (1986)), Taylor

contends that the Fifth Amendment concerns at play in the juvenile court’s reasoning here

readily are apparent.

Moreover, Taylor invokes the Supreme Court’s “penalty cases,” which he

maintains “stand for the proposition that a person may not be penalized in any substantive

way for the exercise of his Fifth Amendment rights.” See id. at 27 (citing Gardner v.

Broderick, 392 U.S. 273 (1968) (invalidating a police officer’s termination for invoking Fifth

Amendment privilege in appearance before a grand jury); Lefkowitz v. Turley, 414 U.S.

[J-97-2019] - 10
70 (1973) (affirming order striking down five-year ban on obtaining government contracts

for New York-licensed architects who refused to sign immunity waivers upon being

summoned to testify before a grand jury); Lefkowitz v. Cunningham, 431 U.S. 801 (1977)

(striking down New York election law providing for five-year ban on holding public office

for political party officers who refuse to testify before a grand jury or waive immunity

against subsequent prosecution)). Notably, Taylor argues, the “penalties” at issue in the

above-mentioned cases—loss of employment, government contracts, and the right to

hold public office—are “plainly less severe than the penalty of an increase of the

maximum period of incarceration by 22 years and an increase of the maximum period of

total supervision by 32 years,” as occurred here. Id. at 27-28.

Additionally, Taylor focuses upon the Superior Court’s discussion in Brown

concerning the availability of “use and derivative use” immunity under the Juvenile Act.

Although the Superior Court did not address that aspect of the Brown decision, Taylor

proffers that no statutory grant of immunity could have remedied the Fifth Amendment

problem here. Id. at 28. In order for a grant of immunity to overcome the constitutional

privilege against self-incrimination, Taylor contends, it must preclude not only the use of

the incriminating statement itself, but also any fruits derived from that statement. Id. at

28-29 (citing Kastigar v. United States, 406 U.S. 441 (1972); Commonwealth v.

Swinehart, 664 A.2d 957, 960 n.5 (Pa. 1995)). Taylor endorses Brown’s rationale and

opines that the protections contained within 42 Pa.C.S. § 6338 are insufficient to displace

the privilege because the statute provides mere “use” immunity, and would not extend to

evidence derived from any incriminating statement supplied in the course of a court-

[J-97-2019] - 11
ordered psychiatric examination.4 Brief for Taylor at 29 (citing Brown, 26 A.3d at 499-502

(containing extensive discussion of immunity in the context of juvenile certification

proceedings)).

Brown’s reasoning aside, Taylor cautions that Section 6338 also is inapplicable

here because it refers to statements made by a minor “in the course of a screening or

assessment,” 42 Pa.C.S. § 6338(c)(1), not an incriminating admission in open court. Brief

for Taylor at 29. Because any inculpatory statement offered to the juvenile court by Taylor

or his attorney would not have been afforded both use and derivative use immunity, Taylor

4 Section 6338 of the Juvenile Act, entitled “Other basic rights,” provides in relevant
part:

(b) Self-incrimination.--A child charged with a delinquent act need not be a
witness against or otherwise incriminate himself. . . . A confession validly
made by a child out of court at a time when the child is under 18 years of
age shall be insufficient to support an adjudication of delinquency unless it
is corroborated by other evidence.

(c) Statements and information obtained during screening or
assessment.--

(1) No statements, admissions or confessions made by or
incriminating information obtained from a child in the course
of a screening or assessment that is undertaken in
conjunction with any proceedings under this chapter,
including, but not limited to, that which is court ordered, shall
be admitted into evidence against the child on the issue of
whether the child committed a delinquent act under this
chapter or on the issue of guilt in any criminal proceeding.

(2) The provisions of paragraph (1) are in addition to and do
not override any existing statutory and constitutional
prohibition on the admission into evidence in delinquency and
criminal proceedings of information obtained during
screening, assessment or treatment.

42 Pa.C.S. § 6338(b)-(c).

[J-97-2019] - 12
asserts that the court’s reliance upon his silence as grounds for certifying the matter

constituted a penalty for exercising a constitutional right, in clear violation of the Fifth

Amendment. Id. at 30.

Taylor further advances a quasi-statutory argument with a constitutional flavor. He

posits that requiring a self-incriminating statement as a prerequisite to a finding of

amenability to treatment in the juvenile system is a fundamental misinterpretation of the

Juvenile Act, because a statute may not be interpreted in a manner violative of the

Constitution. Id. He highlights the Gault Court’s rejection of the government’s argument

that obtaining confessions from juveniles would further the objectives of the juvenile

statute at issue there. The Supreme Court disagreed, countering that “evidence is

accumulating that confessions by juveniles do not aid in ‘individualized treatment,’ . . .

and that compelling the child to answer questions, without warning or advice as to his

right to remain silent, does not serve this or any other good purpose.” Gault, 387 U.S. at

51. By obligating a juvenile to repent or to admit guilt on pain of transfer to adult court for

criminal prosecution violates the Fifth Amendment, Taylor believes that the juvenile court

not only infringed upon a fundamental privilege guaranteed by the Constitution, but also

misapplied the Juvenile Act and exceeded its lawful authority. Brief for Taylor at 31-32.

In a similar vein, Taylor also cites this Court’s rejection of an analogous argument

in Commonwealth v. Bethea, 379 A.2d 102 (Pa. 1977), in which we held that a trial court

could not impose a harsher sentence simply because a defendant exercised his Sixth

Amendment right to a trial by jury. Significantly, the Bethea Court emphasized that

requiring or encouraging an admission of guilt prior to adjudication is unconstitutional:

Repentance has a role in penology. But the premise of our criminal
jurisprudence has always been that the time for repentance comes after

[J-97-2019] - 13
 trial. The adversary process is a fact-finding engine, not a drama of
contrition in which a prejudged defendant is expected to knit up his
lacerated bonds to society. . . .

Moreover, the refusal of a defendant to plead guilty is not necessarily
indicative of a lack of repentance. A man may regret his crime but wish
desperately to avoid the stigma of a criminal conviction.

In fact, a colorable argument can be made that a glib willingness to admit
guilt in order to “secure something in return” may indicate quite the opposite
of repentance, and that a reluctance to admit guilt may in fact reflect
repentance.

Id. at 105 n.8 (quoting Scott v. United States, 419 F.2d 264, 270-71 (D.C. Cir. 1969)

(internal citation omitted)). That same rationale applies here, Taylor says.

Turning to the second issue, Taylor avers that the Superior Court, having

determined that the juvenile court misapplied Section 6355, compounded that error by

concluding that the lower court did not abuse its discretion. He cites this Court’s decision

in Commonwealth v. In re E.F., 995 A.2d 326 (Pa. 2010), for the proposition that, to

constitute an abuse of discretion, “the court rendering the adult certification decision must

have misapplied the law, exercised unreasonable judgment, or based its decision on ill

will, bias, or prejudice.” Id. at 329 (quoting Commonwealth v. Jackson, 722 A.2d 1030,

1032 (Pa. 1999)). Here, by misapplying the Juvenile Act in a manner that violated the

Fifth Amendment, Taylor declares simply that “the juvenile court per se abused its

discretion.” Brief for Taylor at 34.

Taylor also claims that the Superior Court conflated the abuse-of-discretion

standard with harmless-error review. Id. Assuming that harmless error is the applicable

standard under these circumstances, Taylor contends that “it is plain that the juvenile

court’s error was not harmless.” Id. Specifically, Taylor disputes the panel’s conclusion

that the juvenile court’s contemplation of “proper statutory factors” somehow “sanitize[d]

[J-97-2019] - 14
the massive ‘impermissible consideration,’ as the Superior Court put it.” Id. at 36 (quoting

Taylor, 2018 WL 4290127 at *6). He analogizes the juvenile court’s “reli[ance] upon an

erroneous and unconstitutional factor” to the situation in Bethea, where this Court rejected

the Commonwealth’s contention that the sentencing court did not abuse its discretion by

erroneously considering Bethea’s jury demand when affixing his sentence because it also

had considered other relevant, constitutional factors. Id. at 37-38.

Once an abuse of discretion has been established, Taylor advises, “a remand is

generally the appropriate remedy.” Id. at 38 (citing E.F., 995 A.2d at 332-33). He asserts,

however, that, having turned twenty-one during the pendency of this appeal, he now is

beyond the jurisdiction of the juvenile court to re-adjudicate the Commonwealth’s petition

to transfer the case to criminal court. Id. (citing In re Jones, 246 A.2d 356, 363 n.5 (Pa.

1968) (“The Juvenile Court . . . loses jurisdiction over persons when they attain

majority.”)); see also id. at 39 (citing Johnson, 669 A.2d at 321 (“[W]e find that the transfer

order in question is jurisdictional in every sense of the term. Hence, if the challenged

order is improper, jurisdiction does not vest with the receiving court.”)). Taylor

distinguishes his situation from that at issue in Kent. Id. at 40-41. There, the Supreme

Court recognized that, although it could not send the matter back to the juvenile court

after Kent had aged out of the juvenile system, the Court could remand to the District

Court for a de novo hearing pursuant to a “safety valve” in the D.C. Code, which permitted

the District Court to exercise the powers of the juvenile court when the latter no longer

had jurisdiction. Kent, 383 U.S. at 564 (citing Black v. United States, 355 F.2d 104, 107

(D.C. 1965)). Taylor contends that there is no such mechanism for holding an individual

after he exceeds the age of maturity under Pennsylvania law if jurisdiction illegally was

[J-97-2019] - 15
vested with the criminal court. Brief for Taylor at 42. Because the “issue of [juvenile]

certification is jurisdictional and therefore not waivable,” Commonwealth v. Moyer, 444

A.2d 101, 102 (Pa. 1982), Taylor ventures that discharge is the only appropriate remedy

for the infringement of his constitutional privilege.

B.

In a sparse, two-page response, the Commonwealth insists that there was no Fifth

Amendment violation here because Taylor “opened the door to the court’s limited

consideration of his silence in relation to his amenability [t]o treatment before his 21 st

birthday.” Brief for the Commonwealth at 11. Since Taylor’s psychiatric expert opined

that the then-seventeen-year-old Taylor adequately could be treated within the juvenile

system before the court lost jurisdiction over him, the Commonwealth submits that the

juvenile court was right to ponder whether Taylor “would admit guilt during treatment . . .

or whether it might take months or years before he was willing to take the first necessary

step in treatment.” Id. at 12. “This was an appropriate consideration given defendant’s

evidence and argument.” Id. (citing United States v. Robinson, 485 U.S. 25, 33-34 (1988)

(holding that the defense may open the door to evidence of silence)).

The remainder of the Commonwealth’s argument principally focuses upon

establishing that any constitutional error was harmless. See id. at 13 (“Any error

stemming from the consideration of defendant’s refusal to incriminate himself was de

minimis in view of the overwhelming evidence supporting the juvenile court’s decision.”).

To that end, the Commonwealth builds upon the Superior Court’s analysis of the

noncontroversial factors supporting certification that the juvenile court considered.

According to the Commonwealth, there was ample evidence of record demonstrating that

[J-97-2019] - 16
Taylor was not amenable to treatment, contrary to his expert’s opinion that he could be

treated within the time remaining in the juvenile system. Id. at 17-19.

Moreover, juvenile courts statutorily are required to consider a defendant’s

capacity for rehabilitation prior to the expiration of jurisdiction. Id. at 19 (citing 42 Pa.C.S.

§ 6355(a)(4)(iii)(G)). Consequently, the Commonwealth attests, the juvenile court was

well within its authority to scrutinize whether three years was sufficient to effectively treat

Taylor. Although the court stated that it would have been easier to measure the extent of

Taylor’s problem if he had confessed, the court “did not effectively require [Taylor] to

admit guilt to prove his amenability because his lack of amenability was abundantly clear

based on other factors,” id. at 20, which the Commonwealth proceeds to outline in

extensive detail. See id. at 20-27. Viewing the record as a whole, the Commonwealth

gauges that “the juvenile court’s consideration of [Taylor’s] silence was a miniscule aspect

of the evidence weighing against him, and thus it was harmless beyond a reasonable

doubt.” Id. at 27.

C.

In reply, Taylor contests the Commonwealth’s suggestion that he “opened the

door” on the issue of his silence when Dr. Machinski agreed that successful completion

of sex offender treatment often began with admitting guilt. Reply Brief for Taylor at 2. He

notes the Commonwealth’s omission of the fact that the expert merely was responding to

the prosecutor’s leading question over a defense objection, one that the juvenile court

sustained. Taylor claims that the record demonstrates that “at no point did the defense

ever reference Taylor’s silence or in any other way raise the issue.” Id. at 3. Furthermore,

he explains, the Commonwealth’s reliance upon Robinson—the sole precedent cited in

[J-97-2019] - 17
its argument on the principal issue presented—is misplaced. Although it is true that the

Robinson Court held that a defendant may open the door to commentary on his silence,

in that case the Supreme Court considered the prosecutor’s remark that Robinson “could

have taken the stand” to be a “fair response” to defense counsel’s closing, in which he

implied that the government had not allowed the defendant to explain his side of the story.

Id. at 3 (quoting Robinson, 485 U.S. at 26, 32). Here, by contrast, the defense said

nothing about Taylor’s right or ability to testify. Taylor asserts that, at base, the

Commonwealth implies that the defense inherently put Taylor’s silence “at issue” simply

by contesting certification, thus waiving his Fifth Amendment privilege sub silentio. That

supposition, Taylor retorts, is premised upon a fundamental misinterpretation of the

Juvenile Act.

Lastly, Taylor highlights the Commonwealth’s failure directly to answer the second

question presented, suggesting that the omission is a tacit concession that the juvenile

court abused its discretion. Reiterating his view that a court per se abuses its discretion

in committing a constitutional error, Taylor argues that the Superior Court’s quasi-

harmless error review was erroneous because a misapplication of the law resulting in the

denial of a constitutional right can never be a de minimis infraction. He cites

Commonwealth v. Lewis, 598 A.2d 975 (Pa. 1991), in which this Court held that, when a

defendant requests that the jury be instructed not to draw an adverse inference from his

refusal to take the witness stand, a trial court’s failure to give the desired charge, “when

requested to do so in a timely fashion, can never amount to harmless error.” Id. at 981

(emphasis in original); see id. at 982 (“Because the right of a criminal defendant to decline

to take the stand without adverse comment or inference is a fundamental one under

[J-97-2019] - 18
Article I, Section 9 [of the Pennsylvania Constitution], the failure of the trial court to give

the ‘no-adverse-inference’ instruction when so requested is far from the type of ‘de

minimis’ infraction which might form the basis for a ‘harmless error’ finding.”) (citing

Commonwealth v. Story, 383 A.2d 155, 164-65 (Pa. 1978)).

Taylor similarly relies upon Commonwealth v. Edwards, 637 A.2d 259 (Pa. 1993),

where this Court declared that “we have no hesitancy in announcing for the future that it

will be per se reversible error if a judge instructs the jury concerning a defendant’s right

to testify when the defendant has requested that no such instruction be given.” Id. at 262.

He posits that the circumstances presented here call for “[t]he same expedience and

clarity . . . with regard to violations of the Fifth Amendment during certification hearings.”

Reply Brief at 9. For these reasons, Taylor concludes that a harmless error analysis is

not available under these circumstances.5

5 Assuming, arguendo, that the harmless error standard does apply, Taylor argues
that the Commonwealth’s treatment of that issue was inconsistent with the “overwhelming
evidence of guilt” test as set forth by this Court in Story. See Story, 383 A.2d at 166
(stating “that an error may be harmless where the properly admitted evidence of guilt is
so overwhelming and the prejudicial effect of the error is so insignificant by comparison
that it is clear beyond a reasonable doubt that the error could not have contributed to the
verdict”). He contends that the Commonwealth overlooked the Story Court’s clarification
that, “in applying the overwhelming evidence test to determine if an error is harmless, a
court may rely only on uncontradicted evidence” of guilt. Id. at 168 (emphasis added).
Taylor notes that the factual determination here was his amenability to treatment, not his
guilt, and that the defense presented extensive expert testimony to that effect. Reply
Brief for Taylor at 12-13. Because “none of the Commonwealth’s evidence regarding
amenability was uncontradicted,” Taylor reckons that the juvenile court’s legal error
cannot be deemed harmless by the plain terms of that standard. Id. at 13.

[J-97-2019] - 19
 III.

Faced with a question of constitutional dimensions, the parameters of our review

are well-established. The standard of review is de novo, and our scope is plenary.

Commonwealth v. Davis, 220 A.3d 534, 540 (Pa. 2019).

A.

The Fifth Amendment to the United States Constitution, applicable to the States

pursuant to the Fourteenth Amendment, commands that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.” U.S. C ONST. amend. V.

The Supreme Court invariably has referred to the constitutional privilege to be free from

compulsory self-incrimination as the “essential mainstay” of our accusatorial system of

criminal justice. See Malloy v. Hogan, 378 U.S. 1, 7 (1964) (holding that the Fifth

Amendment privilege is protected against abridgment by the States via the Due Process

Clause of the Fourteenth Amendment). While its genesis can be traced to the ancient

“maxim of the common law”—nemo tenetur seipsum accusare—“that no man is bound to

[in]criminate himself,” United States v. Burr, 25 F.Cas. 38, 40 (C.C. Va. 1807) (Marshall,

C.J.), the privilege’s evolution in England and the American colonies resulted from the

“painful opposition to a course of ecclesiastical inquisitions and Star Chamber

proceedings occurring several centuries ago.” Michigan v. Tucker, 417 U.S. 433, 440

(1974).

The maxim . . . had its origin in a protest against the inquisitorial and
manifestly unjust methods of interrogating accused person[s] . . . . So
deeply did the iniquities of the ancient system impress themselves upon the
minds of the American colonists that the states, with one accord, made a
denial of the right to question an accused person a part of their fundamental
law, so that a maxim, which in England was a mere rule of evidence,
became clothed in this country with the impregnability of a constitutional
enactment.

[J-97-2019] - 20
Brown v. Walker, 161 U.S. 591, 596-97 (1896); see generally Miranda v. Arizona, 384

U.S. 436, 458-66 (1966) (tracing the origins and evolution of the privilege).

The centrality of the privilege in American jurisprudence is beyond cavil. “The Fifth

Amendment stands between the citizen and his government.” Ullmann v. United States,

350 U.S. 422, 454 (1956) (Douglas, J., dissenting); see id. at 445 (“The guarantee against

self-incrimination . . . is not only a protection against conviction and prosecution but a

safeguard of conscience and human dignity and freedom of expression as well.”); cf.

Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (noting that the “Self-Incrimination

Clause enables the citizen to create a zone of privacy which government may not force

him to surrender to his detriment”). When scrupulously observed, the privilege ensures

that a “court ought never to compel a witness to give an answer which discloses a fact

that would form a necessary and essential part of a crime which is punishable by the

laws.” Burr, 25 F.Cas. at 40; see Galbreath’s Lessee v. Eichelbergher, 3 Yeates 515,

516 (Pa. 1803). Because “it is the duty of courts to be watchful for the constitutional rights

of the citizen, and against any stealthy encroachments thereon,” Boyd v. United States,

116 U.S. 616, 635 (1886), the Fifth Amendment is to be “broad[ly] constru[ed] in favor of

the right which it was intended to secure.” Counselman v. Hitchcock, 142 U.S. 547, 562

(1892); see Boyd, 116 U.S. at 635 (“constitutional provisions for the security of person

and property should be liberally construed”); Quinn v. United States, 349 U.S. 155, 162

(1955) (same).

To those ends, the High Court has explained that “[t]here are rights of constitutional

stature whose exercise a State may not condition by the exaction of a price.” Garrity v.

New Jersey, 385 U.S. 493, 500 (1967). In Griffin v. California, 380 U.S. 609 (1965), the

[J-97-2019] - 21
seminal decision in the so-called “penalty cases,” the Court reflected upon the practice of

drawing an adverse inference from a defendant’s silence, which it deemed “a remnant of

the ‘inquisitorial system of criminal justice.’” Id. at 614 (quoting Murphy, 378 U.S. at 55).

Reasoning that “comment on the refusal to testify . . . is a penalty imposed by courts for

exercising a constitutional privilege,” which “cuts down on the privilege by making its

assertion costly,” id., the Court held that the Fifth Amendment “forbids either comment by

the prosecution on the accused’s silence or instructions by the court that such silence is

evidence of guilt.” Id. at 615; see Malloy, 378 U.S. at 8 (an individual is “to suffer no

penalty . . . for such silence”); United States ex rel. Vajtauer v. Comm’r of Immigration at

Port of New York, 273 U.S. 103, 112 (1927) (“no inference may be drawn from silence

where there is no duty to speak”). The Griffin rule thus

reflects many of our fundamental values and most noble aspirations: our
unwillingness to subject those suspected of crime to the cruel trilemma of
self-accusation, perjury or contempt; our preference for an accusatorial
rather than an inquisitorial system of criminal justice; our fear that self-
incriminating statements will be elicited by inhumane treatment and abuses;
our sense of fair play which dictates “a fair state-individual balance by
requiring the government to leave the individual alone until good cause is
shown for disturbing him and by requiring the government in its contest
entire load”[;] our respect for the inviolability of the human personality and
of the right of each individual “to a private enclave where he may lead a
private life”[;] our distrust of self-deprecatory statements; and our realization
that the privilege, while sometimes “a shelter to the guilty,” is often “a
protection to the innocent.”

Tehan v. United States ex rel. Shott, 382 U.S. 406, 414 n.12 (1966) (internal citations

omitted).

Moreover, although the privilege is commonly understood in the context of criminal

allegations, its availability “does not turn upon the type of proceeding in which its

[J-97-2019] - 22
protection is invoked, but upon the nature of the statement or admission and the exposure

which it invites.” Gault, 387 U.S. at 49; see Miranda, 384 U.S. at 467 (“[T]here can be no

doubt that the Fifth Amendment privilege is available outside of criminal court proceedings

and serves to protect persons in all settings in which their freedom of action is curtailed

in any significant way from being compelled to incriminate themselves.”). “The privilege

may, for example, be claimed in a civil or administrative proceeding, if the statement is or

may be inculpatory.” Gault, 387 U.S. at 49; see, e.g., Estelle v. Smith, 451 U.S. 454, 462-

63 (1981) (applying the Fifth Amendment to psychiatric examinations conducted pursuant

to the penalty phase of a capital murder trial).

Because “[t]he value of constitutional privileges is largely destroyed if persons can

be penalized for relying on them,” Grunewald v. United States, 353 U.S. 391, 425 (1957)

(Black, J., concurring), the Supreme Court roundly has “condemn[ed] the practice of

imputing a sinister meaning to the exercise of a person’s constitutional right under the

Fifth Amendment.” Slochower v. Bd. of Higher Ed. of City of New York, 350 U.S. 551,

557 (1956); id. (“The privilege against self-incrimination would be reduced to a hollow

mockery if its exercise could be taken as equivalent either to a confession of guilt or a

conclusive presumption of perjury.”). The Court thus has seen fit to extend the Griffin rule

to shield one’s invocation of the privilege from retribution in various non-criminal contexts.

See, e.g., Spevack v. Klein, 385 U.S. 511, 514-16 (1967) (disbarment proceedings);

Gardner, 392 U.S. at 278-79 (police departments); Turley, 414 U.S. at 84-85 (public

contracting); Cunningham, 431 U.S. at 807-08 (political office); cf. Slochower, 350 U.S.

at 557-59 (employment in state colleges); contra Baxter v. Palmigiano, 425 U.S. 308, 318-

19 (1976) (declining to extend the Griffin rule to prison disciplinary matters).

[J-97-2019] - 23
 Self-incriminating statements only may be compelled, the Court has clarified,

where the potential exposure to criminal punishment no longer exists. Such is the case

with grants of immunity. In those discrete instances, “[t]he constitutional inquiry . . . is

whether the immunity granted . . . is coextensive with the scope of the privilege.” Kastigar,

406 U.S. at 449; see Hoffman v. United States, 341 U.S. 479, 486 (1951) (“The privilege

afforded not only extends to answers that would in themselves support a conviction . . .

but likewise embraces those which would furnish a link in the chain of evidence needed

to prosecute” the accused.). Whereas the Fifth Amendment would prohibit a State from

compelling self-incriminating answers that subsequently might be used in criminal

proceedings, “the Constitution permits that very testimony to be compelled if neither it nor

its fruits are available for such use.” Turley, 414 U.S. at 84; see Counselman, 142 U.S.

at 585 (“[N]o statute which leaves the party or witness subject to prosecution after he

answers the [in]criminating question put to him can have the effect of supplanting the

privilege conferred by the constitution of the United States.”). For that reason, the Court

has held that grants of transactional or use-and-derivative-use immunity are “sufficient to

compel testimony over a claim of the privilege.” Kastigar, 406 U.S. at 453.

The preceding authority demonstrates that the Fifth Amendment prohibits

“exact[ing] a price” from an individual’s silence regardless of the forum in which it is

invoked, so long as the threat of future criminal punishment lingers. See Brooks v.

Tennessee, 406 U.S. 605, 610 (1972) (striking down statute that required defendants who

wished to testify to do so before any other defense testimony could be heard). And it is

now hornbook law that the Fifth Amendment applies to juvenile proceedings. See Gault,

387 U.S. at 55; In re Whittington, 391 U.S. 341, 344 (1968) (per curiam) (“[V]arious of the

[J-97-2019] - 24
federal constitutional guarantees accompanying ordinary criminal proceedings were

applicable to state juvenile court proceedings where possible commitment to a state

institution was involved.”); cf. Kent, 383 U.S. at 551, 556. Pertinently, the Supreme Court

has indicated that “[t]he possibility of transfer from juvenile court to a court of general

criminal jurisdiction is a matter of great significance to the juvenile,” and thus must

comport with constitutional guarantees. Breed v. Jones, 421 U.S. 519, 535 (1975)

(holding that a prosecution following an adjudicatory proceeding in juvenile court violates

the Double Jeopardy Clause of the Fifth Amendment).

When evaluating a petition to transfer a minor to adult court in Pennsylvania, a

juvenile court must find “that there are reasonable grounds to believe that the public

interest is served by the transfer of the case for criminal prosecution” before granting the

Commonwealth’s request. 42 Pa.C.S. § 6355(a)(4)(iii). “In determining whether the

public interest can be served,” the court must consider numerous circumstances. Id. The

crux of this case centers upon one such circumstance, namely, “whether the child is

amenable to treatment, supervision or rehabilitation as a juvenile.” Id. § 6355(a)(4)(iii)(G).

In assessing a minor’s amenability to treatment, the juvenile court must weigh 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; [and]
(IX) any other relevant factors[.]

Id. § 6355(a)(4)(iii)(G)(I)-(IX).

[J-97-2019] - 25
 Notwithstanding the court’s duty to consider the minor’s capacity for rehabilitation

within the time remaining before jurisdiction expires, the Commonwealth cites no

authority, nor have we unearthed any, that remotely suggests that the failure to admit to

the commission of a delinquent act—let alone one punishable as a felony if committed by

an adult—may be considered by the juvenile court in rendering its decision. To the

contrary, we find the Superior Court’s opinion in Brown, upon which the panel below

relied, to be exceedingly persuasive. There the Commonwealth charged eleven-year-old

Brown with homicide and homicide of an unborn child after he allegedly shot his father’s

pregnant fiancé once in the head, killing her. Brown, 26 A.3d at 489. Brown subsequently

sought to decertify the criminal proceedings and have the matter transferred to juvenile

court. Id. Relying upon the Commonwealth’s psychiatric expert, who evaluated Brown

and opined that he could not be rehabilitated unless he took responsibility for his actions—

which Brown had not done—the trial court denied his petition, concluding that Brown was

not amenable to treatment in the juvenile system. Id. at 489-90. The Superior Court

reversed, agreeing with Brown’s assertion “that the trial court violated his rights against

self-incrimination because it effectively required him to admit guilt or accept responsibility

to prove that he was amenable to treatment and capable of rehabilitation.” Id. at 493.

As a threshold matter, the Superior Court began by surveying the prevailing

authority to evaluate whether the Fifth Amendment applied to decertification proceedings.

The panel drew heavily from a decision of the Supreme Court of Nevada, In re William

M., 196 P.3d 456 (Nev. 2008) (per curiam), which addressed a facial challenge to the

state’s juvenile transfer statute. Nevada’s certification statute “create[d] a rebuttable

presumption that juveniles who are over 13 years of age and charged with certain

[J-97-2019] - 26
enumerated offenses fell outside of the jurisdiction of the juvenile court and must therefore

be transferred to the district court for criminal proceedings.” Id. at 457. “[T]o rebut the

presumption of certification,” the juvenile court needed to “find by clear and convincing

evidence that the juvenile's criminal actions were substantially influenced by substance

abuse or emotional or behavioral problems that may be appropriately treated within the

jurisdiction of the juvenile court.” Id. The juvenile appellants argued that the statute

required them “to admit to the charged, but unproven, criminal actions” in violation of their

constitutionally-protected privilege against self-incrimination. Id. The Supreme Court of

Nevada agreed. Relying upon Gault, the Court concluded that the privilege was available

to juveniles in certification proceedings and held that the statute’s mandate that a juvenile

“admit to the charged criminal conduct in order to overcome the presumption of adult

certification . . . violate[d] the juvenile’s Fifth Amendment right against self-incrimination.”

Id. at 457.

Relating the William M. Court’s reasoning to the facts in Brown, the Superior Court

determined that the trial court “applied 42 Pa.C.S. § 6355(a)(4)(iii)(G) in a manner that

required [Brown] to admit his guilt or accept responsibility to demonstrate that he was

amenable to treatment and capable of rehabilitation.” Brown, 26 A.3d at 498. Despite

Brown’s “assert[ions] of innocence and refus[al] to discuss the details of the crimes he

allegedly committed” while undergoing psychological evaluation, the trial court relied upon

the testimony of the Commonwealth’s expert that Brown first would need to take

“responsibility for his actions” in finding that Brown was not amenable to treatment within

the juvenile system. Id. In so doing, the trial court improperly applied Section

6355(a)(4)(iii)(G) of the Juvenile Act “to effectively require [Brown] to admit and discuss

[J-97-2019] - 27
his involvement in the actions constituting the criminal offenses,” thereby violating his

privilege against self-incrimination. Id.

The Superior Court then considered the applicability of a 2008 amendment to

Section 6338 of the Juvenile Act, which added subsection (c)(1), providing for a limited

grant of immunity for incriminating statements “obtained from a child in the course of a

screening or assessment that is undertaken in conjunction with any proceeding under”

the Act. 42 Pa.C.S. § 6338(c)(1). For purposes of the appeal, the Superior Court

assumed, without expressly deciding, that the provision would shield any of the

statements made by Brown to the Commonwealth’s psychiatric expert. Brown, 26 A.3d

at 499. Recognizing that an individual’s Fifth Amendment privilege could be displaced,

and the individual compelled to testify, pursuant to a proper grant of immunity, the panel

analyzed whether the immunity granted under Section 6338(c)(1) sufficed to nullify any

threat of adverse consequences flowing from a compelled, inculpatory statement.

The court began by identifying three types of immunity:

“Use” immunity provides immunity only for the testimony actually given
pursuant to the order compelling said testimony. “Use and derivative use”
immunity enlarges the scope of the grant to cover any information or leads
that were derived from the actual testimony given under compulsion. . . .
“Transactional” immunity is the most expansive, as it in essence provides a
complete amnesty to the witness for any transactions which are revealed in
the course of the compelled testimony.

Id. at 499-500 (quoting Swinehart, 664 A.2d at 960 n.5). Because Section 6338(c)(1)

provides only basic “use” immunity, which does not protect a witness from any evidence

obtained as a result of his admissions, the court reasoned that any statutory immunity

was “not co-extensive with the scope of the Fifth Amendment privilege,” and necessarily

was “insufficient to override [Brown’s] Fifth Amendment rights and compel [him] to testify

[J-97-2019] - 28
against himself.” Id. at 500. Consequently, “[i]n the absence of the requisite grant of at

least use/derivative use immunity,” the trial court’s requirement that Brown “admit guilt or

accept responsibility for his actions” on pain of transfer to adult court “subject[ed him] to

a ‘penalty’ sufficient to compel or coerce his testimony” in violation of his Fifth Amendment

privilege. Id. at 501-502.

In the panel’s view, the trial court’s interpretation of the transfer statute

“encourages a juvenile to tender an admission of guilt” from which the Commonwealth

could derive evidence for use in a criminal trial, impermissibly “chilling” the exercise of a

fundamental right protected by the Constitution. Id. at 505.

Although the Commonwealth has a legitimate interest in determining
whether a defendant is amenable to treatment in the juvenile system, it was
not necessary, as a matter of statutory construction, for [Brown] to make an
incriminating statement to prove that he was capable of rehabilitation. By
its plain language, 42 Pa.C.S.A. § 6355(a)(4)(iii)(G) and (G)(VII) do not
mandate that [Brown] admit guilt, accept responsibility or discuss the details
of the facts underlying the charged crimes.

Id. at 506-07. “The trial court, therefore, improperly applied 42 [Pa.C.S.] §

6355(a)(4)(iii)(G) in a way that conditioned transfer to juvenile court upon [Brown’s] waiver

of his Fifth Amendment rights against self-incrimination.” Id. at 507. Accordingly, the

Superior Court concluded that the trial court’s misapplication of the transfer statute

constituted legal error, which “tainted the entire decertification proceedings” and thus

necessitated a remand for a new hearing on Brown’s petition. Id. at 510.

Instantly, the Commonwealth has declined to contest this thorough analysis, opting

instead to relegate its defense of the transfer proceedings below to the bare assertion

that Taylor somehow “opened the door” to the juvenile court’s consideration of his silence

by deigning to contest the petition filed against him. That position, were it to prevail, would

[J-97-2019] - 29
leave juveniles like Taylor with an impossible dilemma: either acquiesce to the transfer

to adult court, or challenge it and effectively waive the Fifth Amendment’s privilege against

self-incrimination by inviting the prosecution and the court to draw an adverse inference

from the juvenile’s silence. We reject the Commonwealth’s “heads I win, tails you lose”

proposition out of hand. Cf. Garrity, 385 U.S. at 498 (“Where the choice is ‘between the

rock and the whirlpool,’ duress is inherent in deciding to ‘waive’ one or the other.”).

We also find the Commonwealth’s reliance upon Robinson to be misplaced. In

Robinson, the Supreme Court denied a Fifth Amendment challenge to the prosecutor’s

fleeting comment in summation that the defendant “could have taken the stand and

explained [his side of the story] to you.” Robinson, 485 U.S. at 26. Central to the Court’s

decision, however, was the portion of defense counsel’s closing argument that implied

that the government failed to afford Robinson an opportunity to offer an explanation of the

relevant events. By suggesting that the prosecution had denied Robinson the chance to

explain his side of the story, the defense “opened the door” to the prosecution’s oblique

“adver[sion] to [his] silence,” which the Court characterized as a fair response to

Robinson’s charge. Id. at 34. The Robinson Court thus clarified that challenges to a

prosecutor’s commentary on a defendant’s silence must be viewed in the full context in

which they arise. See also Lockett v. Ohio, 438 U.S. 586, 595 (1978) (holding that

“prosecutor’s repeated references in his closing remarks to the State’s evidence as

‘unrefuted’ and ‘uncontradicted’” did not constitute improper commentary upon Lockett’s

silence where her “own counsel had clearly focused the jury’s attention” there).

Conversely, here we observe that it was the Commonwealth that arguably invited

a Fifth Amendment violation by commenting adversely upon Taylor’s declination of

[J-97-2019] - 30
culpability in the very proceedings that it initiated in order to prosecute him as an adult.

Specifically, the Commonwealth twice noted that Taylor was “in denial” about his alleged

offenses. N.T., 4/25/2014, at 44, 109. The first time Taylor’s supposed “denial” was

invoked, defense counsel’s objection was quickly—and correctly—sustained by the

juvenile court. Id. at 44. Nevertheless, the Commonwealth persisted, reiterating the point

in argument. Id. at 109. The Commonwealth similarly alluded to Taylor’s silence by

suggesting to the juvenile court that “admitting guilt” was central to the question of Taylor’s

amenability to “sex offender treatment” within the juvenile system. Id. at 58. It did so

again during argument, proclaiming that “the first step towards treatment is admission.”

Id. at 109. But to be clear, the record reflects that at no point did Taylor or his counsel

invite commentary upon his assertion of innocence by word or by action. Ergo, the

circumstances here are more akin to the situation “[w]here the prosecutor on his own

initiative asks the jury to draw an adverse inference from a defendant’s silence,”

Robinson, 485 U.S. at 32, which Griffin plainly forbids.

Of course, we grant that certification proceedings readily are distinguishable from

the criminal trials at issue in Griffin and its progeny. But whether self-incrimination is

compelled in violation of the Fifth Amendment does not turn on the presence of a jury.

See Gault, 387 U.S. at 49; McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). Indeed, the

Supreme Court has had occasion to find that the conduct of a trial judge alone sufficed to

prejudice a defendant in contravention of the Fifth Amendment. In Mitchell v. United

States, 526 U.S. 314 (1999), the Court considered whether “a trial court may draw an

adverse inference from the defendant’s silence” in making factual findings ahead of

sentencing. Id. at 317 (emphasis added). In that case, “Mitchell and 22 other defendants

[J-97-2019] - 31
were indicted for offenses arising from a conspiracy to distribute cocaine in Allentown,

Pennsylvania, from 1989 to 1994.” Id. Mitchell entered an open guilty plea to all counts,

reserving her “right to contest the drug quantity attributable to her under the conspiracy

count,” which the District Court advised “would be determined at her sentencing hearing.”

Id. Before accepting the plea, the court explained that, by pleading guilty, Mitchell “would

waive various rights, including ‘the right at trial to remain silent under the Fifth

Amendment.’” Id. at 318 (record citation omitted). Mitchell assented.

At sentencing, Mitchell contested the quantity of cocaine attributable to her for

purposes of calculating her sentence. “[T]he District Court ruled that, as a consequence

of her guilty plea, [Mitchell] had no right to remain silent with respect to the details of her

crime.” Id. at 319. The court also noted that “‘one of the things’ persuading [it] to rely on

the testimony of” Mitchell’s codefendants, who identified her as having “been a drug

courier on a regular basis,” was that Mitchell did “not testify[] to the contrary.” Id. (“The

District Judge told [Mitchell]: ‘I held it against you that you didn’t come forward today and

tell me that you really only did this a couple of times. . . . I’m taking the position that you

should come forward and explain your side of this issue.’”). The court sentenced Mitchell

to the statutory maximum term of ten years’ imprisonment, and the U.S. Court of Appeals

for the Third Circuit affirmed. Id.

The Supreme Court reversed. Likening Mitchell’s plea to an offer to stipulate, the

Court rejected the Government’s assertion that the “guilty plea was a waiver of the

privilege against compelled self-incrimination with respect to all the crimes comprehended

in the plea.” Id. at 321; see id. at 325 (“We reject the position that either [Mitchell’s] guilty

plea or her statements at the plea colloquy functioned as a waiver of her right to remain

[J-97-2019] - 32
silent at sentencing.”). The Court cautioned that “[t]reating a guilty plea as a waiver of the

privilege at sentencing would be a grave encroachment on the rights of defendants,” id.

at 324, reasoning that:

[w]ere we to accept the Government's position, prosecutors could indict
without specifying the quantity of drugs involved, obtain a guilty plea, and
then put the defendant on the stand at sentencing to fill in the drug quantity.
The result would be to enlist the defendant as an instrument in his or her
own condemnation, undermining the long tradition and vital principle that
criminal proceedings rely on accusations proved by the Government, not on
inquisitions conducted to enhance its own prosecutorial power. Rogers v.
Richmond, 365 U.S. 534, 541 (1961) (“[O]urs is an accusatorial and not an
inquisitorial system[.]”).

Mitchell, 526 U.S. at 325 (parallel citations omitted). Hence, the Court reiterated its

denunciation of the premise that, “[w]here a sentence has yet to be imposed . . .

‘incrimination is complete once guilt has been adjudicated.’” Id. (quoting Estelle, 451 U.S.

at 462).

Acknowledging the general rule that, “where there can be no further incrimination,

there is no basis for the assertion of the privilege,” the Court “conclude[d] that [the]

principle applies to cases in which the sentence has been fixed and the judgment of

conviction has become final.” Mitchell, 526 U.S. at 326; see id. (“If no adverse

consequences can be visited upon the convicted person by reason of further testimony,

then there is no further incrimination to be feared.”). “Where the sentence has not yet

been imposed,” however, “a defendant may have a legitimate fear of adverse

consequences from further testimony.” Id. Because Mitchell’s punishment had not yet

been levied, the Court ultimately observed that, “[b]y holding [Mitchell’s] silence against

her in determining the facts of the offense at the sentencing hearing,” the trial court

“imposed an impermissible burden on the exercise of the constitutional right against

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compelled self-incrimination.” Id. at 330. Accord United States v. Hale, 422 U.S. 171,

181 (1975) (holding that “it was prejudicial error for the trial court to permit cross-

examination of [Hale] concerning his silence during police interrogation”); Grunewald, 353

U.S. at 424 (holding that “it was prejudicial error for the trial judge to permit cross-

examination of [Grunewald] on his plea of the Fifth Amendment privilege before the grand

jury”).

In view of the foregoing authority, we adopt the Superior Court’s well-reasoned

opinion in Brown to the extent that it holds that the protections of the Fifth Amendment

are applicable to juvenile transfer proceedings. We recognize that the Juvenile Act vests

with the juvenile court a substantial degree of discretion within which to adjudge whether

jurisdiction over a minor should be retained or should be transferred to an adult court for

criminal prosecution. “But this latitude is not complete.” Kent, 383 U.S. at 553. Like the

juvenile statute at issue in Kent, our Juvenile Act “assumes procedural regularity sufficient

in the particular circumstances to satisfy the basic requirements of due process and

fairness.” Id; see Commonwealth v. Pyle, 342 A.2d 101, 105 (Pa. 1975) (adopting Kent’s

formulation of the rights of juveniles in transfer proceedings and holding that “in order to

try in a criminal court any person who might qualify as a juvenile, the waiver into such

criminal court must be in a manner conforming to due process of law”). Although a

juvenile court has “considerable latitude” in weighing relevant facts for purposes of

evaluating a transfer petition, Kent, 383 U.S. at 552-53, we now hold that the Juvenile Act

does not countenance the drawing of an adverse inference from a juvenile’s refusal to

admit to the offenses with which the juvenile is charged. When faced with a critical

decision such as whether to certify a juvenile for transfer to an adult court for prosecution,

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a court may not condition its ruling upon the minor’s assertions of innocence or invocation

of the Fifth Amendment. To do so would place too high a cost on the juvenile’s

constitutional privilege against compulsory self-incrimination, guaranteed by the Fifth

Amendment. See Griffin, 380 U.S. at 614.

We also concur in the Brown Court’s conclusion that Section 6338 of the Juvenile

Act does not provide a guarantee of immunity sufficient to displace the Fifth Amendment

privilege in juvenile transfer proceedings. The immunity statute covers only an

“extrajudicial statement” that could be used against the juvenile, 42 Pa.C.S. § 6338(b),

and “statements, admissions or confessions made by or incriminating information

obtained from a child in the course of a screening or assessment that is undertaken in

conjunction with proceedings under” Chapter 63 of the Pennsylvania Code. Id. §

6338(c)(1). It extends only so far as to bar the admission of evidence of a self-

incriminating character “against the child on the issue of whether the child committed a

delinquent act . . . or on the issue of guilt in any criminal proceeding.” Id. By its plain

terms, the statute applies only to incriminating statements themselves, and does not

encompass evidence derived from such statements. Therefore, the immunity

contemplated in Section 6338 cannot be considered coterminous with the Fifth

Amendment privilege so as to permit a court to compel a juvenile in Taylor’s position to

incriminate himself in order to demonstrate his amenability to treatment within the juvenile

system.6

6 Relatedly, the record fails to elucidate whether Taylor was advised of his right to
remain silent prior to undergoing psychiatric assessment by the Commonwealth’s expert.
Compare Estelle, 451 U.S. at 468 (holding that “[a] criminal defendant, who neither
initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may

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 In sum, Taylor’s decision to maintain his innocence was committed to him and him

alone by the Constitution, and he did so in clear terms while under court-mandated

psychiatric examination. Plainly, he “need not have the skill of a lawyer to invoke the

protection of the Self-Incrimination Clause.” Quinn, 349 U.S. at 162; see id. (“It is agreed

by all that a claim of the privilege does not require any special combination of words.”);

cf. Tucker, 417 U.S. at 439 (“At this point in our history virtually every schoolboy is familiar

with the concept, if not the language,” of the Fifth Amendment’s Self-Incrimination

Clause.). But “by ‘solemnizing the silence of the accused into evidence against him,’”

Portuondo v. Agard, 529 U.S. 61, 65 (2000) (quoting Griffin, 380 U.S. at 614) (brackets

omitted), the juvenile court denied to Taylor—who, we must emphasize, remained

cloaked in “the presumption of innocence which the law gives to everyone,” Wilson v.

United States, 149 U.S. 60, 66 (1893)—the privilege entrusted to him by the Bill of Rights.

Simply put, a minor’s refusal to confess to an act for which he or she might be

criminally prosecuted as an adult may not be considered when deciding whether to certify

a case for transfer between juvenile and adult court. This remains true irrespective of the

necessary considerations of amenability to treatment contemplated by the Juvenile Act

or of the possibility of immunity contained therein. As there is no way to guarantee that

certification would be denied, or decertification granted, upon an admission of guilt, a

minor cannot be expected to take so broad a leap of faith.

B.
Having concluded that Taylor’s Fifth Amendment privilege was infringed upon in

the transfer proceedings below, we need not dwell on the subordinate issue at length. It

not be compelled to respond to a psychiatrist if his statements can be used against him
at a capital sentencing proceeding”).

[J-97-2019] - 36
is a paradigmatic abuse of discretion for a court to base its judgment upon an erroneous

view of the law. See Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934) (“An abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion the law is

overridden or misapplied . . . discretion is abused.”); Commonwealth v. Braithwaite, 385

A.2d 423, 426 (Pa. 1978) (same); see also Koon v. United States, 518 U.S. 81, 100 (1996)

(“A district court by definition abuses its discretion when it makes an error of law.”); Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384 (1990) (“A district court would necessarily abuse

its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.”).7

Whether to certify a juvenile matter for transfer is a decision committed to the

sound discretion of the juvenile court pursuant to a carefully prescribed, multi-factored

statutory analysis. Although we concur in the Superior Court’s pronouncement that the

juvenile court committed constitutional error by weighing Taylor’s silence against him, we

find that the panel’s rationalization that the lower court did not abuse its discretion was

itself erroneous.

The constitutional privilege against compelled self-incrimination “is a fundamental

one,” and any “practice which exacts a penalty for the exercise of the right is without

justification and unconstitutional.” Bethea, 379 A.2d at 104. This concern is no less

significant when the penalty contemplated is the transfer of a minor to adult court for

criminal prosecution, where the pain of imprisonment looms overhead like the Sword of

Damocles. Because the juvenile court exacted a price for Taylor’s exercise of his rights

under the Fifth Amendment, its decision reflects a misapplication of the law, and thus an

abuse of discretion.

7 Accord In re Doe, 33 A.3d 615, 628 n.19 (Pa. 2011) (finding an abuse of discretion
where the trial court “reli[ed] upon the [juvenile’s] failure to seek parental consent as a
ground upon which to deny the application for judicial authorization” to exercise her
constitutionally protected right to obtain an abortion).

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 Traditionally, the prosecution bears the burden of demonstrating that any prejudice

resulting from a Griffin violation did not redound to the defendant’s detriment. See

Chapman v. California, 386 U.S. 18, 25-26 (1967) (applying harmless error review to

Griffin errors); Commonwealth v. Henderson, 317 A.2d 288, 291 (Pa. 1974) (same); cf.

Anderson v. Nelson, 390 U.S. 523, 523-24 (1968) (per curiam) (holding that “comment

on a defendant’s failure to testify cannot be labeled harmless error in a case where such

comment is extensive, where an inference of guilt from silence is stressed to the jury as

a basis of conviction, and where there is evidence that could have supported acquittal”).

Here, however, we are presented with a Fifth Amendment violation which was

squarely committed by a juvenile court, sitting as the finder of fact, charged with the

solemn duty to adjudicate whether a minor should be tried as an adult. The Mitchell Court

did not affix the appropriate remedy in this rare context. And we are without advocacy on

the significant question of whether the instant violation ranks as error of the kind the

Supreme Court has deemed “structural,” and thus beyond remediation under a harmless

error review.8 Accordingly, we reverse the judgment of the Superior Court and remand

for a determination, in the first instance, and with developed advocacy of the parties, of

whether the harmless error doctrine is applicable to the juvenile court’s constitutionally

deficient misapplication of the Juvenile Act’s transfer provisions and, if it is not or if the

error is not harmless, for consideration of the available relief under these circumstances.9

It is so ordered.

8 Cf. McCoy v. Louisiana, ___ U.S. ___, 138 S.Ct. 1500, 1512 (2018) (holding that
a trial court’s allowance of defense counsel’s admission of guilt on behalf of his client,
despite the defendant’s insistent objections, was incompatible with the Sixth Amendment
and thus constituted structural error necessitating the award of a new trial).
9 In light of our resolution of this case on constitutional grounds, we decline the
Commonwealth’s invitation to assess the weight of the certification hearing evidence
based upon the parties’ dueling expert testimony at this juncture.

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 Chief Justice Saylor and Justices Todd and Mundy join the opinion.

Justice Baer files a concurring and dissenting opinion in which Justices Donohue

and Dougherty join.

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