Applicability of Harmless Error Doctrine to Certification of Juvenile to be Tried as an Adult

Commonwealth v. Taylor, 2021 WL 3206496 (Pa. Super. 2021) (unreported), allocatur granted March 22, 2022, appeal docket 40 MAP 2022

Nazeer Taylor was convicted of rape of a child and related offenses arising from incidents that occurred when Taylor was 15 years old. The juvenile court certified Taylor to be tried as an adult, based in part on his refusal to admit to acts committed when he was a juvenile, which the court concluded showed that Taylor was not amenable to treatment. Specifically, the juvenile court reasoned:

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.

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.

Slip op. at 5-7.

On review, Superior Court held that the juvenile court violated Taylor’s Fifth Amendment privilege against compulsory self-incrimination by considering his failure to admit culpability when it granted certification, but found that, in view of the record as a whole, the court did not abuse its discretion in granting certification. In Commonwealth v. Taylor, 230 A.3d 1050 (Pa. 2020), the Supreme Court affirmed the Superior Court’s holding as to the Fifth Amendment violation. Justice Baer filed a concurring and dissenting opinion, joined by Justice Donohue and Justice Dougherty, concluding that the error was prejudicial and would have reversed Taylor’s judgment of sentence and discharged the defendant, finding no other remedy possible under the circumstances. Superior Court summarized the concurring and dissenting opinion as follows:

… the juvenile court stated it relied on Taylor’s refusal to incriminate himself when making its decision to certify the case.  Justice Baer pointed out that the juvenile court emphasized that Taylor had not admitted that he had committed the offense and considered his refusal “problematic because, inter alia: (1) time was essential for treatment; (2) if Taylor’s denial continued, it would prevent effective treatment; and (3) Taylor’s refusal to admit guilt would make it difficult to identify the depth of Taylor’s problem for purposes of treatment.” Id. (citation omitted). Justice Baer concluded that “the record sufficiently establishes that there is at least a ‘reasonable possibility’ that the juvenile court’s error ‘might have contributed’ to its decision to certify Taylor to be tried as an adult; consequently, the error was prejudicial.” Id. He would therefore “conclude that the juvenile court relied on a constitutionally impermissible factor in deciding to transfer Taylor to adult court and that this reliance was prejudicial.” Id.

Justice Baer also concluded that, as Taylor was over the age of 21, no court had jurisdiction to hold a renewed certification hearing and, therefore, the only available remedy was dismissal. Id. at 1074-75. He would have vacated the judgment of the Superior Court, reversed the judgment of sentence, and, “assuming that [Taylor] has not committed other crimes that would place him under the purview of the criminal justice system, [would have] direct[ed] that he be discharged.” Id. at 1075.

Slip op. at 9-10. However, a majority of the Supreme Court determined that it could not address the applicability of the harmless error doctrine without advocacy from the parties and remanded the case to Superior Court for consideration of whether the harmless error doctrine is applicable, and if it is not or if the error is not harmless, for consideration of the available relief.

Superior Court summarized the parties’ arguments as to harmless error as follows:

Taylor argued that the error was a structural error, and therefore not amenable to the harmless error standard. He argues that “misapplying the law to deny a defendant’s constitutional rights can never be ‘the type of de minimis infraction which might form the basis for a harmless error finding.’ ” Taylor’s Supp. Br. at 22 (quoting Commonwealth v. Lewis, 598 A.2d 975, 982 (Pa. 1991) (internal quotation marks omitted)). Taylor relies on Lewis and Commonwealth v. Edwards, 637 A.2d 259 (Pa. 1993), to argue that the Fifth Amendment violation is not amenable to harmless error analysis. He further relies on Commonwealth v. Kelly, 724 A.2d 909 (Pa. 1999), and Commonwealth v. Bethea, 379 A.2d 102 (Pa. 1977).

The Commonwealth argues the harmless error doctrine does apply here. It maintains that to determine whether the harmless error doctrine applies, courts must determine whether the error is structural; if it is, then the harmless error doctrine is inapplicable. The Commonwealth states that structural defects are those that “affect[ ] the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Commonwealth’s Br. at 30 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). The Commonwealth argues that the error here was not a structural defect in the framework of a trial, or a defect that related to the determination of guilt or innocence. Rather, the Commonwealth contends, it was an error in process, “pertaining to the consideration of a single factor (acceptance of responsibility) among several other factors to be weighed in the procedural context of determining whether [Taylor] should be tried as an adult.” Id. at 30-31. It claims the “remaining factors can be readily weighed without considering the impermissible factor to determine the degree to which the impermissible factor altered the outcome of the proceeding.”

Slip op. at 11-12. As to remedy if the error was found not harmless, the parties argued that:

Taylor argues that the proper remedy is his discharge. He acknowledges that, ordinarily, where a court abuses its discretion in ruling on a certification hearing, the proper remedy is remand for a new certification hearing. However, such relief is not possible here because Taylor is over the age of 21. He notes that the juvenile court lost jurisdiction over him after he turned 21, and that the trial court cannot obtain jurisdiction over him without a valid certification issued by the juvenile court. 

Taylor notes that the Commonwealth conceded before the Supreme Court that, if Taylor prevailed on the merits, the proper remedy would be his release. Taylor’s Supp. Br. at 38 (quoting N.T., Nov. 19, 2019). He further notes that the concurring and dissenting Justices concluded that the only possible remedy was discharge, since the certification to criminal court was improper and he has aged out of the juvenile court’s jurisdiction.

Taylor distinguishes Kent v. United States, 383 U.S. 541, 565 (1966). There, the United States Supreme Court found the juvenile court had erred in sending a case involving a juvenile to criminal court for trial. However, because the defendant had passed the age of 21, the juvenile court no longer had jurisdiction and the Supreme Court could not remand to juvenile court. Instead, in view of a Washington, DC statute that allowed the federal district court to exercise all of the powers of the District of Columbia juvenile court, the Court remanded to the federal district court.

Taylor argues that Pennsylvania does not have a comparable “safety valve” statute that would allow a case to be heard in the adult system when the defendant aged out of the juvenile system. Taylor’s Supp. Br. at 42-43. Taylor notes that the Pennsylvania Supreme Court has found a transfer order to be jurisdictional and that “if the challenged order is improper, jurisdiction does not vest with the receiving court.” Taylor’s Reply Br. at 15 (quoting Commonwealth v. Johnson, 669 A.2d 315, 321 (Pa. 1995)). He concedes that the Courts of Common Pleas have broad original jurisdiction, but argues that the juvenile division is the part of the Common Pleas to which this matter should be returned. He contends “[t]he Commonwealth does not get to select a different division simply because the constitutional error which led the case to be erroneously heard in the adult system now prevents the case from being returned to the juvenile system because of the happenstance of Mr. Taylor’s age.” Id. at 16.

The Commonwealth maintains that the appropriate remedy is to grant a new certification hearing. It claims that, contrary to Taylor’s suggestion, Kent is not distinguishable and the Supreme Court’s decision there did not use the phrase “safety valve.” Rather, the Commonwealth says, the structure of District of Columbia and Pennsylvania laws in this regard are similar, and the statutes should be interpreted similarly. It further argues, regardless of whether there is a “safety valve,” Kent does not support the limitation placed on it by Taylor. The Commonwealth argues that the Court there did not suggest that “without some ‘safety valve’ in the D.C. Code, it would have discharged the defendant rather than remand because he had somehow managed to escape accountability in the courts by aging his way into jurisdictional limbo.” Commonwealth’s Supp. Br. at 17.

The Commonwealth also states that if a “safety valve” were needed, Pennsylvania law provides one, in that the Court of Common Pleas of a judicial district has unlimited original jurisdiction. It points to Article V, Section 5 of the Pennsylvania Constitution, which provides, “There shall be one [C]ourt of [C]ommon [P]leas for each judicial district (a) having such divisions and consisting of such number of judges as shall be provided by law … and (b) having unlimited original jurisdiction in all cases except as may otherwise be provided by law.” Id. at 18 (quoting Pa.Const. art. V, § 5) (emphasis omitted). It also points to 42 Pa.C.S.A. § 952, which states that “each division of the [Court of Common Pleas] is vested with the full jurisdiction of the whole court.” Id. at 19 (quoting 42 Pa.C.S.A. § 952).

The Commonwealth thus argues that unless the law provides otherwise, the Court of Common Pleas has unlimited original jurisdiction, and “if a specialized assignment of jurisdiction to a particular division is unavailable in that division for whatever reasons, the result is not jurisdictional limbo; the result is unlimited original jurisdiction in the Court of Common Pleas.” Id. at 18. As applied to juvenile matters, it maintains that Pennsylvania law does not “contemplate a scenario where an individual can age into a jurisdictional limbo beyond the reach of the Court of Common Pleas despite breaking the laws of the Commonwealth and victimizing another person.” Id. at 21. It further argues that, if the statutes are unclear, they should be interpreted such that the General Assembly did not intend a result that is absurd, impossible, or unreasonable, and it contends adopting Taylor’s argument would achieve such a result.

Slip op. at 19-22.

Superior Court held that the juvenile court’s violation of Taylor’s Fifth Amendment right when deciding whether Taylor should be tried as adult is a structural error and therefore cannot be declared harmless. While Superior Court acknowledged that in accordance with Commonwealth v. Monaco, 869 A.2d 1026, 1029-30 (Pa.Super. 2005) and Commonwealth v. Anderson, 630 A.2d 47, 48-51 (Pa.Super 1993), a defendant who committed act as a juvenile, but is not charged until after achieving the age of 21, can be tried as an adult in the criminal court absent improper motivation for the delay, Superior Court explained that it was “constrained to conclude the only available remedy is discharge,” reasoning:

When deciding the remedy available in Kent, the United States Supreme Court interpreted a Washington D.C. statute, and did not address what the proper remedy would be under Pennsylvania law.

In Pennsylvania, the juvenile division has exclusive jurisdiction to determine whether to transfer a matter to the criminal division. 42 Pa.C.S.A. § 6303(a); Johnson, 669 A.2d at 321. The juvenile division, however, no longer has jurisdiction over Taylor, who is over the age of 21 and no longer a “child” under the Act. 42 Pa.C.S.A. §§ 6303(a); 6302. Further, because certification was not proper, the criminal court lacked jurisdiction to try Taylor. See Johnson, 669 A2d at 321; Greiner, 388 A.2d at 702. Although it could have done so, the General Assembly did not provide a mechanism for a court to have jurisdiction to hold a certification hearing where a certification determination was reversed on appeal, but a juvenile turned 21 during the appellate process. We do not have the authority to create such jurisdiction.

Further, the Anderson/Monaco exception cannot apply here, as the Commonwealth did not first institute charges after Taylor turned 21. The Commonwealth filed a delinquency petition while Taylor was a Child and when he remained subject to the Juvenile Act.

Slip op. at 29-30.

The Supreme Court granted allocatur as to the following issues:

(1) Whether the harmless error doctrine applies where a certifying judge lists an impermissible factor as one of several factors in support of a decision to certify a juvenile to be tried as an adult?

(2) Whether Pennsylvania’s Courts have the constitutional and statutory authority to hold defendants fully accountable for Crimes Code violations, even when those defendants age out of the parameters of the juvenile division of a court of common pleas during the appellate process, given that Pennsylvania’s Constitution and statutory law vests the singular court of common pleas in each judicial district with unlimited original jurisdiction in all cases where jurisdiction is not vested in another court?


For more information, contact Kevin McKeon or Dennis Whitaker.