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COMMONWEALTH PENNSYLVANIA v. ROBBY LEE ZOLLER (09/06/85)

filed: September 6, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBBY LEE ZOLLER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. MICHAEL EUGENE FAHNESTOCK, APPELLANT



Appeal from the Judgments of Sentence in the Court of Common Pleas of Cumberland County, Criminal Division, No. 927 Criminal 1983

COUNSEL

Dale F. Shughart, Jr., Carlisle, for appellant Robby Lee Zoller.

Carol Munson, Assistant Public Defender, for appellant Michael Eugene Fahnestock.

Theodore B. Smith, Assistant District Attorney, for Commonwealth, appellee.

Tamilia, Montgomery and Roberts, JJ. Roberts, J., concurs in result.

Author: Tamilia

[ 345 Pa. Super. Page 352]

These are consolidated appeals from judgments of sentence of 10-20 years to a state institution following appellants' guilty pleas to third degree murder. Prior to tendering the plea, each appellant was charged with criminal homicide (18 Pa.C.S.A. § 2501), murder (18 Pa.C.S.A. § 2502(a) and (b)) and robbery (18 Pa.C.S.A. § 3701(a)(1)(i)). Following a hearing and denial on September 28, 1984 of a

[ 345 Pa. Super. Page 353]

Petition for Transfer to Juvenile Court, both appellants chose to plead guilty to third degree murder rather than stand trial for first and second degree murder and robbery.

The plea agreements were tendered and accepted by the court on November 5, 1984. As part of the agreement, the court was asked to bind itself to a sentence of not less than ten (10) nor more than twenty (20) years of confinement but permitting the parties to argue the place of confinement at the sentencing hearing. Also, the Commonwealth requested that defendants agree to withdraw all then pending motions, pretrial or otherwise, including the Motion for Transfer to Juvenile Court, the Motions to Suppress and the motion filed under Rule 1100. It was, however, correctly determined during the colloquy that the Motion for Transfer was a jurisdictional issue and, therefore, not waivable. See Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). Hence, although the instant appeals are from judgments of sentence of 10-20 years, the order, which is the subject of the appeals and the sole issue before us, is whether the trial court erred in refusing appellants' requests for transfer of the proceedings to juvenile court.

A review of the briefs and record reveals the following nondisputed facts: Ronald Harder was a borderline mentally retarded, 46 year old man who, on a number of occasions during the 2-3 years prior to the murder, had homosexual experiences with appellant, Robby Zoller. Harder was killed by appellants, Zoller (age 15, born 9/3/68) and Fahnestock (age 15, born 6/6/68), on September 12, 1983.

After digging a shallow grave with a shovel obtained at the Fahnestock home, and with the intent of killing Harder, appellants lured the victim to the murder site. The two beat Harder over the head with the shovel and dragged him into the grave where appellant, Fahnestock, inflicted another wound. They took the victim's wallet, buried him under dirt and tree limbs, threw the shovel into a creek and washed ...


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