decided: November 16, 1972.
Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1968, No. 79, in case of Commonwealth of Pennsylvania v. Dave Harris.
Jack M. Myers and Zack and Myers, for appellant.
Steven H. Goldblatt and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J.
[ 223 Pa. Super. Page 11]
It is the duty of a judge to transfer a criminal proceeding to the juvenile court if "it shall be ascertained
[ 223 Pa. Super. Page 12]
that the person charged with the offense was under the age of 16 years at the time the alleged offense was committed. . . ."*fn1 The appellant at the time of the offense was less than 16 but he told the court he was 19. He asks for post-conviction relief on the ground that the criminal court had no jurisdiction.
If the statute made non-age a jurisdictional matter,*fn2 the conviction might well be improper notwithstanding appellant's false testimony. However, the statute here does not deprive the court of jurisdiction but imposes a duty to transfer only if non-age was ascertained during the pendency of the criminal charge.