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filed: October 12, 1984.




Arthur L. Goldberg, Harrisburg, for appellant.

Kevin A. Hess, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

Cirillo, Beck and Cercone, JJ. Beck, J., concurred in the result.

Author: Cirillo

[ 334 Pa. Super. Page 517]

This is an appeal from a judgment of sentence entered on January 25, 1983, in the Court of Common Pleas of Cumberland County. Following a jury trial on September 23, 1982, the appellant, John Vincent Waters, was convicted of first-degree murder. This was the second trial of the appellant. In the first trial held in May, 1982, the jury had been unable to render a verdict as to the murder charge, but did find the appellant guilty of a related charge of involuntary deviate sexual intercourse, 18 Pa.C.S. § 3123(4). Post-trial motions as to both the involuntary deviate sexual intercourse conviction and the murder conviction were filed and subsequently denied. The court imposed a sentence of life imprisonment for the murder conviction and a term of four to ten years to be served concurrently for the involuntary deviate sexual intercourse conviction. This appeal followed.

On October 14, 1981, the body of an eleven year old boy, Steven Turner, was found stabbed and bludgeoned to death in an abandoned farm house within a mile of his home in Cumberland County, Pennsylvania. The body, covered by stones and boards, was discovered in the evening as a result

[ 334 Pa. Super. Page 518]

    of a search for the boy which commenced when he did not come home for dinner.

An autopsy revealed that the 4 foot 9 inch, 80 pound sixth grader had died as a result of multiple head injuries. He had sustained a massive fracture of the skull from blows to the back and the side of the head, a broken jaw on each side of the face, a stab wound to the back of the neck and a stab wound to the back of the chest. He had also been subjected to a post-mortem incise wound on the right wrist and stab wound in the front of the neck. The blade of a knife, with its handle broken off, was left in the victim's neck. The autopsy report also indicated that sperm was present in the victim's mouth.

The appellant, John Vincent Waters, a 152 pound, sixteen year old, 5 foot 8 inch high school student told police during an original canvass of the neighborhood, that he had last seen the victim on the afternoon he disappeared. He told the police that he had observed the victim getting into an unknown car which subsequently drove out of the development.

As a result of a further canvass of the neighborhood, the police obtained a steak knife from the appellant's mother. The knife which she had in her house matched the one found at the murder scene including the blade which had been left in the victim's throat.

On October 25, 1981, the police requested that the appellant and his father report to the municipal building for questioning concerning the homicide. The appellant was given the Miranda warnings in the presence of his father. Thereafter he and his father consulted with each other. The appellant waived his rights and agreed to speak to the police without having his father present. His father had no objection to such an interrogation.

During the course of the questioning, the appellant made an inculpatory statement, admitting that he had engaged in oral intercourse with the victim and then had killed him.

[ 334 Pa. Super. Page 519]

On appeal, the appellant alleges that the court erred in failing (1) to transfer the proceeding to juvenile court, (2) to suppress his October 25 statement, (3) to grant a mistrial after the publication of prejudicial news stories, (4) to cover several suggested points for charge, and (5) to permit counsel in his closing to discuss the applicable penalties of the offenses. The appellant also challenges the constitutionality of the involuntary deviate sexual intercourse statute and of the imposition of a mandatory life sentence. We find that none of the appellant's allegations are meritorious and accordingly affirm the judgment of sentence.

The appellant alleges that his case should have been transferred to the juvenile court. He had filed a pre-trial motion requesting such a transfer, but it had been denied. At the time of his arrest, the appellant was sixteen years old, but due to the nature of his offenses, the proceedings were instituted in criminal court.

Under the Judicial Code, 42 Pa.C.S. § 6322(a), the court has the discretion to transfer appropriate cases to juvenile court. It is, however, the burden of the petitioner, herein the appellant, to prove that he does not belong in criminal court. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). This is accomplished by demonstrating a need for and an amenability to programs for rehabilitation, supervision, and care provided by the juvenile court system. Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981). If the evidence does not affirmatively establish that the petitioner would benefit from such programs and ...

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