Ronald J. Brockington, Philadelphia, for appellant.
Maxine J. Stotland, Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Eagen, O'Brien and Pomeroy, JJ., concur in the result.
Marie Ledrick, 59 years of age, was robbed and struck on the head during the late evening hours of August 1, 1970. Her body was discovered sometime afterward, lying on the pavement of Nectarine Street near the intersection of Eleventh Street, Philadelphia, Pennsylvania. Her handbag and small change purse were found several feet away from the body. Appellant, Gary Andrew Jones, age 15, was tried before a jury and convicted of murder in the first degree and aggravated robbery. He was sentenced to life imprisonment. Post-verdict motions were denied and this appeal followed.
Appellant's pretrial motion to suppress was denied and statements made by appellant to the police during custodial questioning were introduced into evidence at trial. Appellant argues that these statements should have been excluded for one or more of three reasons: (1) that the appellant's constitutional rights were violated by the admission at trial of the above mentioned statements for the reason that the appellant had not made a
knowing and intelligent waiver of his constitutional rights; (2) that appellant was detained after arrest for an unreasonable length of time before being presented to a juvenile court judge, and, (3) that Rule 318 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix, as then in force, deprived the defendant of the equal protection of the laws by providing for the assignment of an attorney in a capital case only after the preliminary arraignment. We agree that the defendant's statements were taken in violation of his constitutional rights, and thus need not consider the other assignments of error.
When the admissibility of a confession is challenged, the prosecution at the suppression hearing has the burden of proving that the defendant made a knowing and intelligent waiver of his rights when being questioned by the police; that waiver must be shown by a preponderance of the evidence. Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). See also Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
In deciding whether that burden has been met, we consider the testimony of the prosecution witnesses, and that portion of the evidence offered by the defense that remains uncontradicted. Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973); Commonwealth v. Davenport, 449 Pa. 263, 295 A.2d 596 (1972); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
Police arrested appellant at 3:10 a. m., on August 4, 1970, at his home. The police were admitted to the apartment by appellant's father, who was told that his son had been implicated in a homicide. Appellant, who was asleep in his room at the time, was awakened by his father. Appellant's father accompanied appellant who
was taken directly to the police station, arriving at 3:34 a. m. Appellant's father was not told about his son's constitutional rights at this time. Appellant was then taken, without his father, into an interrogation room. Inside the interrogation room, appellant was informed as to his constitutional rights and indicated he waived those rights. He was then questioned continuously for almost two hours by two detectives about the incident involving Marie Ledrick. He denied any participation until 5:15 a. m., when he admitted taking part in the robbery of Marie Ledrick, but claimed that a friend, Rocky, had struck the victim. The interrogation continued for about another two hours before a break was taken and appellant was given something to eat and drink. At 8:10 a. m., appellant's father was brought into the interrogation room and was permitted to see his son. At 8:53 a. m., appellant's constitutional rights were again read to him and waived by him in his father's presence, but no questions about appellant's constitutional rights were directed to appellant's father. Appellant and his father had no opportunity to talk privately after this reading of appellant's constitutional rights. The taking of the formal statement immediately commenced and continued until 10:16 a. m. The statement, which was nine pages long, was signed by the appellant and witnessed by his father.
The 15 year old appellant had an IQ of 74, and was in a "special education and retarded educable cycle" at school. Even though he was co-operative and not a discipline problem, he had been placed in this special education class because school personnel had determined that he could not benefit from a regular classroom setting. As of June, 1970, three months before his arrest, appellant's reading comprehension was at the level of a first grade student. He had learned to write his full name only within the past year. His ...