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decided: October 4, 1972.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1969, No. 1160, in case of Commonwealth of Pennsylvania v. Richard Porter.


Bruce W. Miller, with him David N. Savitt, and Silver, Miller & Silver, for appellant.

Carolyn E. Temin, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this [illegible Word]. Mr. Chief Justice Jones and Mr. Justice Eagen concur in the result. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.

Author: Pomeroy

[ 449 Pa. Page 157]

On the evening of November 21, 1969, 79-year-old Harry Specht, while walking to a grocery store in South Philadelphia, was attacked, kicked and beaten by a gang of youths, and left to die on the sidewalk. Appellant, Richard Porter, then 16 years of age, was one of four subsequently indicted for aggravated robbery and murder in connection with the incident. In May, 1970, a jury found Porter guilty of murder in the second degree but acquitted him of the charge of aggravated robbery. Post-trial motions were denied and appellant was sentenced to 6-20 years imprisonment. This appeal, raising four issues, followed. Because we decide them all adversely to appellant, the judgment of sentence below will be affirmed.

I. Voluntariness of Confession

The Commonwealth introduced at trial an informal (unsigned) confession made by appellant on the day following the murder. On the morning of that day two members of the Juvenile Aid Division of the Philadelphia Police Department, acting on information obtained by the police as a result of interrogation of other suspects, had proceeded to the Porter home and stated to Mrs. Lillian Porter, appellant's mother, that

[ 449 Pa. Page 158]

Richard was wanted for questioning in connection with a killing that had occurred the night before. Appellant also was told the reason for the investigation, and accompanied by his mother,*fn1 was taken to the police station. Mrs. Porter was left in the waiting room*fn2 while appellant was interrogated by a homicide detective. Full Miranda warnings*fn3 were read, whereupon appellant declined the services of a lawyer and proceeded to confess his complicity in the murder of Specht. The period of questioning was from 9:50 A.M. to 10:29 A.M. At the conclusion of the interrogation, the officer who had taken the statement encountered Mrs. Porter in the waiting room, and took her in to see her son. Richard repeated the substance of his story to his mother, who expressed displeasure that her son had confessed and endeavored unsuccessfully, to contact an attorney. She forbade Richard to make a formal, signed statement.

[ 449 Pa. Page 159]

Appellant admits that had his confession been elicited from an adult, its admissibility would not be subject to attack. His sole contention is that because he was a juvenile and because his mother was denied access to the interrogation room, his purported waiver of Miranda rights was ineffectual and the resultant confession involuntary. The same argument was recently considered and rejected by this Court in Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971), where we said in pertinent part: "[I]t is argued that a 'juvenile lacks the ability' to fully understand and assert his constitutional rights and hence cannot effectively waive such rights without the advice of a more mature person. We emphatically reject such a prophylactic rule, particularly where a sixteen-year or seventeen-year-old is concerned . . . [T]o declare as matter of law that a sixteen-year-old, regardless of maturity and intelligence, is unable to fully understand when he is informed of his constitutional rights and may not by himself waive his right to counsel before being questioned by the police would be to ignore reality and the sophistication of the average sixteen-year-old in these days and times." 446 Pa. at 354.

The true approach to the issue of voluntariness and intelligent waiver, as reiterated in Moses, is a consideration of "all the attending circumstances . . . including the age, maturity and intelligence of the individual involved. . . . And where the accused is of tender years, the attending circumstances must be scrutinized with special care." Such scrutiny in this case shows the following: The appellant, then a suspect, was a sixteen-year-old boy in the eleventh grade of school, and characterized by his mother as intelligent. Mrs. Porter made only a single request to accompany her son during interrogation. Her desire to be present was apparently not shared by the boy, for he made no request

[ 449 Pa. Page 160]

    that his mother be with him nor objected to being questioned alone. Full Miranda warnings were given, and the responses, reproduced in the margin,*fn4 as to waiver of the rights to counsel and to remain silent were clear and unequivocal. The interrogation was brief, lasting but thirty-nine minutes. Porter appeared to the police officers normal in every respect, and not under the influence of alcohol or drugs. As he readily admits, appellant was subjected to neither physical nor mental coercion. These circumstances were for the suppression hearing judge as the trier of fact on the voluntariness issue. Nothing in this record indicates to us that he abused his discretion in finding a knowing and intelligent waiver, and we again decline to rule that as a

[ 449 Pa. Page 161]

    matter of law the resulting confession was rendered involuntary solely because appellant's mother was denied permission to be in the interrogation room. See and compare, Commonwealth v. Harmon, 440 Pa. 195, 269 A.2d 744 (1970).*fn5

II. Extra-judicial Statements of Co-defendants

Appellant next contends that it was reversible error to allow two witnesses to testify, over objection, as to extra-judicial statements of others involved in the murder. The first witness stated that all the youths had related to him how "they beat up some white man", and the second testified that one boy said he had taken a dime from the victim's pocket.

The rule with reference to declarations of co-conspirators as exceptions to the hearsay rule, as long recognized in Pennsylvania and elsewhere, has most recently been reiterated by us as follows: "The declarations or acts of one co-conspirator made to third parties in the absence of his co-conspirator are admissible in evidence against both provided that such declarations [or acts] were made during the conspiracy and in furtherance of the common design: [citations omitted]." Commonwealth v. Ellsworth, 409 Pa. 505, 509, 187 A.2d 640 (1963), quoting from Commonwealth v. Wilson, 394 Pa. 588, 607, 148 A.2d 234 (1959). Cf. Rule 508, Vicarious Admissions, Model Code of Evidence, Am. Law Inst. 1942; McCormick, Evidence, ยง 244, p. 521 (1954). See Note, Criminal Conspiracy, 72 Harv. L. Rev. 920, 984-990 (1959). The out-of-court statements here involved were admitted into evidence for the reason, presumably, that they qualified under this exception,*fn6

[ 449 Pa. Page 162]

    and the trial court's rulings in this respect are not now disputed. Cf. Commonwealth v. Ransom, 446 Pa. 457, 463, 288 A.2d 762 (1972). To allow the introduction of hearsay in criminal trials, however, may run afoul of the Sixth Amendment to the Constitution of the United States, which guarantees, inter alia, that the accused "shall enjoy the right . . . to be confronted with the witnesses against him . . .", a fundamental right made obligatory on the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 926 (1965). The exceptions to the rule against hearsay do not necessarily, by virtue of being exceptions, obtain immunity from attack under the confrontation clause. California v. Green, 399 U.S. 149, 155-156, 26 L. Ed. 2d 489, 495-96 ...

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