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J-A07014-04
2004 PA Super 281

IN THE INTEREST OF: M.M.
:
IN THE SUPERIOR COURT OF

:
PENNSYLVANIA

:

COMMONWEALTH OF PENNSYLVANIA, :

Appellant
:
No. 325 EDA 2003

Appeal from the Order Entered December 9, 2002
In the Court of Common Pleas, Criminal Division
Philadelphia County, J.P. No. 8626-02-11

BEFORE: TODD, PANELLA, and JOHNSON, JJ.

OPINION BY TODD, J.: Filed: July 21, 2004

¶1 The Commonwealth of Pennsylvania appeals the December 9, 2002
order of the Philadelphia Court of Common Pleas dismissing the charge of
possession of a controlled substance filed against M.M. For the reasons set
forth below, we vacate the order and remand the case to the trial court.
¶2
On November 20, 2002, M.M., who was 16 years old at the time, was
arrested and charged with possession of a controlled substance, namely,
marijuana, under 35 P.S. § 780-113(a)(16). Following his arrest, M.M.
spent several days in custody at the Youth Study Center. Based on the fact
that M.M. possessed .40 grams of marijuana,1 the charges against M.M. later
were amended to include the charge of possession of a small amount of
marijuana for personal use under 35 P.S. § 780-113(a)(31). On
December 9, 2002, the Commonwealth requested that the court defer
adjudication and order M.M. to undergo treatment. The Honorable Robert J.
Rebstock refused to defer adjudication, and instead dismissed sua sponte

J-A07014-04
the charges against M.M. on the grounds that M.M.'s conduct was de
minimus under 18 Pa.C.S.A. § 312(a). In doing so, Judge Rebstock stated:
I understand that you don't have any objection to a deferred
adjudication. Here's the problem, I don't try these cases.

And so I'm having a hard time allowing him to admit to
something that I routinely discharge in this courtroom because it
has nothing to do with him. Okay. But if you don't bring him in
with something else besides possession of a small amount of
marijuana, I discharge the case as a diminimous [sic] amount of
marijuana.

Because I don't believe in tieing [sic] the system up with it.
If he does something else besides possessing a small amount of
marijuana then I will willingly find him, you know, and deal with
that.

(N.T. Hearing, 12/9/02, at 2-3.)
¶3 We note that the proper standard of review for evaluating a trial
court's rejection of a defendant's plea and the dismissal of the charges as de
minimus infractions is whether the court abused its discretion.

Commonwealth v. Przybyla, 722 A.2d 183, 184 (Pa. Super. 1998).
Section 312(a) provides:
(a) General rule.--The court shall dismiss a prosecution if,
having regard to the nature of the conduct charged to constitute
an offense and the nature of the attendant circumstances, it
finds that the conduct of the defendant:

(1) was within a customary license or tolerance, neither
expressly negatived by the person whose interest was
infringed nor inconsistent with the purpose of the law defining
the offense;

1 M.M. admitted to having purchased four "nickel bags" of marijuana, totaling .4
grams.

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J-A07014-04
(2) did not actually cause or threaten the harm or evil
sought to be prevented by the law defining the offense or did
so only to an extent too trivial to warrant the condemnation
of conviction; or

(3) presents such other extenuations that it cannot
reasonably be regarded as envisaged by the General
Assembly or other authority in forbidding the offense.

18 Pa.C.S.A. § 312(a). The purpose of Section 312 is "to remove petty
infractions from the reach of the criminal law." Commonwealth v. Moll,
375 Pa. Super. 147, 156, 543 A.2d 1221, 1226 (1998).
¶4
At the hearing at which he dismissed the charges against M.M., Judge
Rebstock stated that he did not believe in tying up the court system with the
offense for which M.M. was charged. His stated objective is not, however,
an appropriate basis for dismissing a charge under Section 312.2 Indeed,
this Court previously has condemned the adoption of a blanket policy by the
trial court with respect to sentencing matters. In Commonwealth v. Mola,
838 A.2d 791 (Pa. Super. 2003), this Court held that a colorable claim of a
blanket sentencing policy raised a substantial question as to whether the
sentence violates the Sentencing Code, which requires sentences tailored to

2 We note that in his opinion written pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, Judge Rebstock explained that he dismissed the
charges against M.M. on the grounds that, under Section 312(a)(2), M.M.'s conduct
was "too insignificant to warrant a conviction." (Trial Court Opinion, 5/27/03, at 4.)
Initially, we note that as this is a juvenile case, M.M. was subject to an adjudication
of delinquency and not a criminal conviction. Furthermore, while we express no
opinion whether the amount of marijuana possessed by M.M. can be considered de
minimus in certain circumstances, it is apparent based on our review of the record
that Judge Rebstock dismissed the charges against M.M. based on his blanket policy
regarding such cases, rather than on the individual circumstances of M.M.'s case.

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J-A07014-04
each case. Id. at 792. In Mola, the appellant pled guilty to two counts of
delivering a controlled substance, and the trial judge sentenced him to
concurrent terms of 2 to 15 years. The statutory maximum sentence for the
offense is 15 years. In sentencing Mola, the trial judge announced a blanket
policy that "there must be some changes in the city of Reading and this
court believes that the imposition of the lawful maximum sentences on drug
delivery cases will help to serve as a deterrent to those who would consider
dealing drugs in Reading and Berks County." Id. at 794 (quoting trial
court's opinion). The trial judge further indicated that "in appropriate cases
this court intends to impose the maximum sentence from now on." Id.
¶5 In holding that the trial court abused its discretion, this Court
explained:
Imposing a standardized sentence on all drug offenders is a
manifest abuse of discretion. Pennsylvania has long endorsed a
policy of indeterminate, individualized sentencing. That policy is
incompatible with a one-size-fits-all sentence. In effect, the trial
court chose the maximum sentence based on seriousness of the
crime alone, which is impermissible. The trial court must
consider each crime and each defendant in light of the total
circumstances and fashion an appropriate sentence.

Id. (citations omitted).
¶6
As noted above, Judge Rebstock repeatedly indicated that he did not
and would not try cases wherein the defendant is charged only with
possession of a small amount of marijuana, and that it was his practice to
discharge such cases. Thus, it is clear that Judge Rebstock has adopted a
blanket policy as to these types of cases. We recognize that the instant case

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J-A07014-04
does not involve an alleged violation of the Sentencing Code, as did Mola.
However, our concerns regarding a trial court's blanket sentencing policy for
the perpetrators of a specific crime and its failure to consider the individual
circumstances of a defendant are equally applicable to the case sub judice.
¶7 Moreover, the trial court's actions frustrate the purposes of the
Juvenile Act. Section 6301 of the Juvenile Act delineates the following
among the purposes of the Act:
Consistent with the protection of the public interest, to provide
for children committing delinquent acts programs of supervision,
care and rehabilitation which provide balanced attention to the
protection of the community, the imposition of accountability for
offenses committed and the development of competencies to
enable children to become responsible and productive members
of the community.

42 Pa.C.S.A. § 6301(b)(2). Under Section 6352 of the Juvenile Act, upon a
finding that a child is delinquent, the trial court has a number of possible
orders of disposition with the proviso that the disposition is:
consistent with the protection of the public interest and best
suited to the child's treatment, supervision, rehabilitation, and
welfare, which disposition shall, as appropriate to the individual
circumstances of the child's case, provide balanced attention to
the protection of the community, the imposition of accountability
for offenses committed and the development of competencies to
enable the child to become a responsible and productive member
of the community.

42 Pa.C.S.A. § 6352(a).
¶8 By routinely refusing to accept guilty pleas from and discharging
defendants charged with possession of a small amount of marijuana, such as
M.M., Judge Rebstock is frustrating the very purpose of the Juvenile Act.

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J-A07014-04
The Juvenile Act requires the trial judge to consider the protection of the
public interest, and to fashion a sentence which is best suited to the child's
treatment, supervision, rehabilitation, and welfare, under the individual
circumstances of each child's case. In the instant case, not only did the trial
judge fail to consider the protection of the public, he gave no consideration
to M.M.'s individual need for treatment, supervision, rehabilitation, or
welfare. The trial judge is taking a "one-size-fits-all" approach to certain
juvenile drug offenders by adopting what he acknowledges is a blanket
policy of dismissing the charges. Such a blanket policy is as inappropriate in
juvenile cases as it is in adult sentencing cases, in that it fails to consider the
individual circumstances of the defendant as required. Therefore, we hold
that Judge Rebstock's adoption of such a blanket policy is a manifest abuse
of discretion.
¶9
For the reasons set forth above, we vacate the order of the trial court
which dismissed the charges against M.M., and remand this case for
adjudication or other proceedings before a judge other than Judge Rebstock3
consistent with the directions in this opinion.
¶10 Order
VACATED. Case REMANDED. Jurisdiction RELINQUISHED.

3 Assignment to a different judge on remand is appropriate "when the judge's
actions below demonstrated a degree of bias, capricious disbelief, or prejudgment
such as to raise doubts as to his or her ability to preside objectively and fairly upon
remand." Koleski v. Park, 363 Pa. Super. 22, 34, 525 A.2d 405, 410 (1987)
(citation omitted). In view of Judge Rebstock's demonstrated prejudgment of cases
involving possession of small amounts of marijuana, we believe that remand to a
different trial judge is appropriate in the instant case.

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