decided: November 24, 1976.
COMMONWEALTH OF PENNSYLVANIA
JACOB KEEFER, APPELLANT
Dante G. Bertini, Public Defender, Greensburg, for appellant.
Louis H. Ceraso, Asst. Dist. Atty., Greensburg, Albert M. Nichols, Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result.
[ 470 Pa. Page 144]
OPINION OF THE COURT
Appellant, Jacob Keefer, was found guilty by a jury of criminal conspiracy, robbery and voluntary manslaughter. Post-trial motions were denied, and appellant was sentenced to a term of not less than five nor more than twenty years at a state correctional institution on the robbery conviction. Terms of not less than five nor more than ten years each for the manslaughter and conspiracy convictions were imposed, both to run concurrently with the robbery sentence. This appeal followed.*fn1
[ 470 Pa. Page 145]
Evidence presented at trial by the Commonwealth demonstrated that on January 22, 1974 appellant, a seventeen year old juvenile, and three other individuals agreed to rob a hotel in Westmoreland County. Testimony of three co-defendants established that Keefer actively participated in the planning of the robbery, suggested the premises to be robbed and drove the getaway car. During the course of the robbery, a patron, Walter Long, was shot and killed.
Keefer was arrested and charged with criminal homicide arising out of the conspiracy and robbery and later indicted for murder in the criminal division of the court of common pleas.*fn2 He was separately charged with conspiracy and robbery in the juvenile division of the same court.*fn3 A transfer hearing was held at which it was determined that the conspiracy and robbery charges should be transferred to the criminal division to be tried with the homicide charge, and the jury trial which followed embraced all three of the charges.
The first issue raised by appellant is whether the robbery and conspiracy charges were properly transferred for trial from the juvenile division to the criminal division.*fn4 Appellant argues that because the juvenile petition
[ 470 Pa. Page 146]
charged only robbery and conspiracy, both of which are delinquent acts under the Juvenile Act,*fn5 jurisdiction of these charges was in the juvenile division. He claims that the transfer of these charges to the criminal division is governed by Sec. 28(a)(4) of the Juvenile Act,*fn6 which section requires as a condition of transfer that the Commonwealth make out a "prima facie case that the child committed the delinquent act alleged" and demonstrate "that there are reasonable grounds to believe that the child is not amenable to treatment, supervision
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or rehabilitation as a juvenile through available facilities." Appellant then asserts that at the transfer hearing the Commonwealth failed to make out such a prima facie showing, with the result that the transfer of the robbery and conspiracy charges was improper. We cannot agree with this reasoning or conclusion.
Keefer's argument hinges on the erroneous assumption that the juvenile division in this case had jurisdiction over the robbery and conspiracy charges. The argument ignores the fact that he was charged not merely with robbery and conspiracy, but with murder as well. The Juvenile Act makes a clear distinction between juveniles charged with murder and those charged with delinquencies of a lesser nature.*fn7 The robbery and conspiracy charges here involved, although initially brought in the juvenile division, were the underlying felonies of the felony murder charge simultaneously initiated in the criminal division. We have held that in cases charging a juvenile with murder, the criminal division has original and exclusive jurisdiction over the offense, and the burden is on the juvenile "to show that he does not belong in the criminal court." Commonwealth v. Pyle, 462 Pa. 613, 622, 342 A.2d 101, 106 (1975). In the case at bar, the charges brought against Keefer in the juvenile division were part and parcel of a felony murder charge properly within the original and exclusive jurisdiction of the criminal division. Indeed, the record and briefs of the parties clearly demonstrate that the judge at the
[ 470 Pa. Page 148]
transfer hearing knew that a murder was alleged to have arisen out of the offenses before him. Thus, this is not a case where the juvenile petition merely alleges conduct which if proved, would constitute acts of delinquency over which the juvenile division has original jurisdiction. It is, rather, a case where the delinquencies charged in the juvenile petition constitute an integral part of the one offense over which the juvenile court, in the first instance, had no jurisdiction whatsoever. In this situation the hearing judge was correct in transferring the underlying felonies to the criminal side of the court of common pleas.
Beyond this, it would make no sense to try a juvenile as an adult on a felony murder charge in the criminal division and as a juvenile on the underlying felony in the juvenile court division. To do so would not only subject the defendant to the ordeal of two trials but also to the hazard of inconsistent verdicts and separate sentences imposed by separate judges neither of whom possesses an over-all perspective. At a time when both this Court*fn8 and the legislature in the recent Crimes Code,*fn9 have signaled that all offenses arising out of a single criminal episode or course of conduct should, in the interest of fairness to a defendant, not to speak of economy of judicial resources,*fn10 be tried together, it would be
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anomalous for us to mandate a different result with respect to this juvenile charged with felony murder.
The second issue raised by appellant is whether his Fifth Amendment rights were violated when the prosecutor cross-examined him concerning a statement made to the police at the time of arrest because the statement did not include the alibi upon which appellant relied at trial.
Appellant did not raise this issue in his written post-trial motions but in a petition filed at the sentencing hearing, over a year after completion of the trial.*fn11 The general rule in regard to the filing of post-trial motions is set forth in Rule 1123 of the Pennsylvania Rules of Criminal Procedure. In this case the Court declined to hear and rule upon appellant's additional post-trial argument. While defense counsel claims*fn12 that he believed the court would hear oral argument on his post-trial motions, he does not state upon what basis he formed this belief. Furthermore, even assuming that defense counsel's belief was justified, this does not excuse his failure to submit any kind of motion, written or oral, to the court until the date of sentencing, some three and one-half months after the denial of post-trial motions. Under these circumstances we cannot fault the
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sentencing judge for rejecting appellant's request to submit an additional argument. We therefore conclude that appellant waived the Fifth Amendment issue sought to be raised therein.*fn13 Judgments of sentence affirmed.