Commonwealth v. Doe

CONCURRING OPINION

BODLEY, J.

I concur with the result reached by Judge Garb but would dismiss the juvenile’s motion squarely upon the ground that neither the constitutional concept of double jeopardy nor the so-called supervisory rule laid down in Campana II applies to juvenile proceedings.

Since the decision in In re Gault, 387 U.S. 1 (1967), and the application of Gault’s very reasonable due process requirements to juvenile hearings, counsel, and sometimes the court, I think, tend to lose sight of the fact that juvenile hearings are not criminal trials and that a juvenile is not being tried for crime. Increasingly, it seems, counsel urge upon the court technical deficiencies in arrest, search and seizure, detention, and court proceedings as reasons why a juvenile hauled before the Juvenile Court upon a delinquency petition which *580alleges the commission of crime, should not be discharged. In my view, this trend should be discouraged and reversed.

It must be remembered that the subject of the proceedings is always a “child” as that term is defined in section 2(1) of the Juvenile Court Act who, hopefully, will be the beneficiary of the benign purposes of that statute. Gault very pointedly, at page 21, held that the observance of due process standards did “not compel the States to abandon or displace any of the substantive benefits of the juvenile process.” One of those benefits, it occurs to me, is a process which should avoid fostering in the juvenile the mind of a criminal bent upon “beating the rap.” One of those benefits is to be brought face to face with the misdeed committed, its significance to society and to the juvenile’s later life.

Gault, at page 30, specifically reaffirmed what it said in Kent v. United States, 383 U.S. 541 (1966), a certification case: “ ‘We do not mean... to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearings but we do hold that the hearing must measure up to the essentials of due process and fair treatment.’ ” The court went on to say “We reiterate this view (the Kent view), here in connection with a juvenile court adjudication of‘delinquency,’ ...” Implicit in this statement would seem to be the suggestion that except for basic due process rules, as laid out in Gault, ordinary criminal trial rules and procedures should not be applied.

The Crimes Code, and in particular, section 110, concerning autre fois convict and autre fois acquit, has no application in a juvenile proceeding. We are told by our Supreme Court that Pa.R.Crim.P. 118, *581concerning prompt arraignment, applies to juvenile proceedings, notwithstanding Pa.R.Crim.P. 1(a) which states that the criminal rules do not apply to “juvenile proceedings.”: Geiger Appeal, 454 Pa. 51 (1973). We are also told that a court’s consideration of a prior juvenile record in connection with a delinquency finding is a violation of due process: Wilson Appeal, 438 Pa. 425, 429 (1970), and there is much intermingling of criminal law language with juvenile law language, e.g., Wilson Appeal, 438 Pa. 425,429 (1970), where use of terms “sentence,” “new trial” and “sentencing” are found. But as said in Commonwealth v. Johnson, 211 Pa. Superior Ct. 62 (1967), the United States Supreme Court in Gault, did not intend “to emasculate” juvenile court laws and proceedings but rather, merely insure elementary fairness and due process.

The more we permit ourselves to become engrossed with criminal rules and constitutional concepts, such as double jeopardy, the further we retreat from the reality that unless and until a juvenile proceeding is certified to criminal court, we are dealing with children under a Juvenile Act. In doing so, we lose sight of the purposes of the act:

“(1) To preserve the unity of the family whenever possible and provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this act;
“(2) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation;
“(3) To achieve the foregoing purposes in a fam*582ily environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety;
“(4) To provide means through which the provisions of this act are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.”: 11 PS §50-101.

I conclude that double jeopardy and the supervisory rule of Campana do not apply to juvenile proceedings. A child under juvenile law concept, I submit, cannot be “subject for the same offense to be twice put in jeopardy of life or limb.”