No. 1075 October Term, 1979, Appeal from the judgment of sentence of the Court of Common Pleas of Cumberland County, Pennsylvania, Criminal Division, at 1041 Criminal 1978.
Ellen M. Burgraff, Assistant Public Defender, Carlisle, for appellant.
Edgar B. Bayley, Jr., District Attorney, Carlisle, for Commonwealth, appellee.
Hester, Wickersham and Lipez, JJ. Lipez, J., files a concurring statement.
[ 286 Pa. Super. Page 597]
On October 11, 1978, the appellant, Howard Dale Dotson, entered Elby's Restaurant in Lemoyne, Cumberland County, at about 9:00 p.m. He was carrying a 12 gauge shotgun, wearing a black T-shirt, had a bandanna over his face and was accompanied by one other similarly clad youth. In his possession was a 12 gauge shell. Within one hour the Lemoyne Police Department, working with the Upper Allen Township Police, had appellant in custody and under arrest along with several others. He was charged with criminal conspiracy to commit robbery and criminal attempt to commit robbery.
Being under the age of 18 years (age 17, born June 5, 1961), Dotson's activity came within the purview of the "Juvenile Act," 42 Pa.C.S. § 6301 et seq. At the time of the Elby's caper, Dotson was an escapee from Cornwall Heights juvenile detention facility.
The Cumberland County Juvenile Court, by President Judge Dale F. Shughart, conducted proceedings under Section 6355 of the Juvenile Act and ruled that the offenses should be prosecuted, and transferred the offenses to criminal court.
Thereafter, on February 12, 1979, defendant Dotson entered a plea of guilty to a felony in the second degree, criminal conspiracy to commit armed robbery, and was sentenced on May 1, 1979 to undergo imprisonment in a state correctional institution for a period of not less than two and one-half years, nor more than seven years. This appeal followed.*fn1
[ 286 Pa. Super. Page 598]
We find no merit in the last three statements of questions involved and affirm as to those points on the basis of the opinion of President Judge Shughart filed August 23, 1979 per Pa.R.A.P.1925.
We will discuss the first issue raised by appellant, namely whether the burden is on the Commonwealth to prove the juvenile's noncommittability and, if so, whether the court can require the child to cooperate in being examined by a psychiatrist.
As we have seen, under Section 6355 of the Juvenile Act, the court before hearing a petition on its merits may rule that the offense should be prosecuted and transfer the offense to the court assigned to ...