No. 1443 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 961-963, 965 February 1981.
Thomas L. McGill, Jr., Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Brosky and Hoffman, JJ.
[ 332 Pa. Super. Page 37]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County.
Appellant, Charles Brown, was arrested on January 8, 1981 for the stabbing death of Theodore Walker, which had occurred approximately one month earlier. Appellant was sixteen (16) years of age at the time of arrest. Also arrested was a 21 year old co-defendant, William Wharton.
[ 332 Pa. Super. Page 38]
Appellant was charged with possession of an instrument of crime, criminal conspiracy, robbery, murder, and involuntary manslaughter. Following a jury trial in late 1981, appellant was convicted of possession of an instrument of crime, criminal conspiracy, robbery, and murder in the second degree.*fn1 Post-trial motions were filed and denied. On April 28, 1982, appellant was sentenced to concurrent terms of life imprisonment for murder, five (5) to ten (10) years for criminal conspiracy, and two and one-half (2 1/2) to five (5) years for possession of an instrument of crime.*fn2 While the sentence was to be served at Graterford State Correctional Institution, it was recommended by the lower court that due to his age, appellant be permitted to serve his initial sentence at Camp Hill State Correctional Institution. This appeal timely followed.
Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the testimony at trial established the following: On the evening of December 11, 1980, at approximately 11:30 p.m., Darryl Lamb and Michael Sawyer were standing on the street corner of Gratz and Susquehanna in Philadelphia, when they were joined by appellant and William Wharton. Wharton told the group that he needed money for Christmas. Wharton then took a knife from his pocket and began sticking it into a nearby wall. Then, leaving Lamb and Sawyer standing on the corner, appellant and Wharton began to walk down Susquehanna Avenue towards a sandwich shop. As appellant and Wharton approached the sandwich shop, the victim, Theodore Walker, a stranger to appellant and Wharton, came out of the shop. Appellant and Wharton walked towards the victim. As they passed him, Wharton tried to trip Walker, but instead fell down himself. Wharton got up, pulled a knife and he and appellant started to chase the victim, who had begun to run across the street. Walker
[ 332 Pa. Super. Page 39]
fell, however, and as he tried to get up, Wharton stabbed him twice in the back. After appellant and Wharton went through the victim's pockets, appellant said, "Let's go" and he and Wharton ran down the street to their homes.
On appeal, appellant raises two issues:
1. Whether the motion court erred in denying appellant's motion to transfer his case and trial to the juvenile court where appellant demonstrated a need and amenability to the program of supervision, care and rehabilitative treatment he would receive as a juvenile?
2. Whether the trial court erred in failing to grant a mistrial, or give cautionary instructions where the prosecutor during closing argument expressed his opinion on the evidence and made statements designed to inflame the jury's passions, and prejudice the appellant?
Brief for Appellant at 2.
The law applicable to the transfer of a criminal proceeding in which a juvenile is charged with murder is found in section 6322(a) of the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq.*fn3 That section states, in appropriate part:
[I]f it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. If 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 chapter applied.
Pursuant to 42 Pa.C.S.A. § 6322(a), the court in a criminal proceeding against a juvenile charged with murder may transfer the action to juvenile court. However, treatment
[ 332 Pa. Super. Page 40]
as a youthful offender is not a matter of right*fn4 in such cases, and the determination of whether the interests of state and society require prosecution of murder on an indictment is left to the sound discretion of the common pleas court. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). Subject to the due process limitations of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 ...