No. 759 JANUARY TERM, 1977 Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, at No. 933 of 1976 Term, dated October 28, 1977, imposing a sentence of life imprisonment on a conviction of murder in the first degree.
Henry F. Gingrich, John M. Smith, Lancaster, for appellant.
Louise G. Herr, Asst. Dist. Atty., Edward F. Browne, Jr., Lancaster, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision in this case. Eagen, C. J., concurs in the result. Roberts, J., filed a dissenting opinion in which Nix, J., joins.
This is an appeal from a conviction of murder in the first degree in the Court of Common Pleas of Lancaster County on October 6, 1976. A judgment of sentence of life imprisonment was imposed.
Prior to trial, hearings were held on a petition to transfer the case to Juvenile Court, on a petition for commitment of a person charged with a crime and detained in a penal or correctional institution, and on an application to suppress a statement and evidence. Denials were entered by the court with respect to each of these.
On March 25, 1976, at approximately 8:36 p. m. a police officer was directed by his radio dispatcher to the scene of a fatal shooting at a residence in Columbia, Pennsylvania. The officer arrived at the scene at 8:38 p. m., and found appellant, Gregory Scott Sourbeer, who was fourteen years of age, alone, and the body of Gregory's mother seated in a chair in the living room of the residence. Gregory Sourbeer told the officer that he accidentally shot his mother while cleaning his gun. Since Gregory was alone, the officer had him transported to the police station at approximately 8:42 p. m., the officer remaining at the residence to investigate the incident.
On March 25, 1976, at 11:48 p. m., appellant, in the presence of his older brother, was given Miranda warnings by a state police officer. The warnings were read from a preprinted juvenile rights form, and Sourbeer's acknowledgment of his understanding of his constitutional rights was recorded thereon by the officer. Gregory then conferred privately with his brother for one half hour. Following this conference, appellant and his brother told the police they desired to consult with their family attorney. The attorney, arriving at the police station sometime after midnight on
March 26, 1976, conferred with appellant and his brother from 1:05 a. m. until 1:31 a. m., following which appellant agreed to answer police questions in the presence of his brother and the attorney. Appellant, his brother, and the attorney all signed a juvenile rights form waiving appellant's right to remain silent.
Appellant was interrogated by police from 1:32 a. m. on March 26, 1976 until 3:03 a. m., when he indicated that he was tired and wanted to sleep. During the interrogation, Gregory was permitted to smoke, and inquiry was made as to whether he wanted food or drink, and, at 2:05 a. m., he was given a soft drink during a break in the questioning. When, at 2:53 a. m., appellant was asked if he was tired or if he wished to continue the interrogation, he indicated that he was somewhat tired, but desirous of continuing the investigation. The attorney requested a consultation with the appellant, privately, after which the police were informed that appellant did not wish to answer further questions, and the interrogation was at an end. At 4:37 a. m. appellant was again advised of his constitutional rights and informed that he would be charged with murder. The appellant was transported to the office of a magistrate, arriving sometime between 5:15 a. m. and 5:30 a. m. on the morning of March 26, 1976, arraigned, and then taken to a detention center for juveniles.
The appellant raises many issues, but after considering all of them, we find they have no merit, and, accordingly, affirm the court below.
Appellant contends that it was error not to transfer the case to the Juvenile Division. The Juvenile Act*fn1 states in relevant part:
"[I]f it appears to the Court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this Act applied . . ." 11 P.S. § 50-303.
In Commonwealth v. Pyle, 462 Pa. 613, 662, 342 A.2d 101, 106 ...