E. J. O'Halloran, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion in which Jones, C. J., and Eagen, J., joined.
Appellant, Michael Chaney, was tried by a judge and jury and found guilty of murder in the first degree and aggravated robbery. Post-trial motions were denied and appellant was sentenced to life imprisonment. Appellant filed this appeal and we reverse his judgment of sentence.
Appellant argues that the court erred in failing to suppress his confession. Chaney, age sixteen, was arrested September 8, 1972, at approximately 11:25 a. m. and transported to police headquarters, where he arrived at
:45 a. m. He was warned of his rights at 12:05 p. m. and thereafter gave his first oral admission at 1:05 p. m. He was then questioned, given a polygraph examination and finally gave a final written statement at 7:54 p. m. At his suppression hearing and in post-trial motions, appellant argued that based on our decision in Commonwealth v. Harmon, 440 Pa. 195, 269 A.2d 744 (1970), his confession should have been suppressed because he was a juvenile and because he did not voluntarily give the confession. However, since the taking of appellant's appeal in this case, this court has in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975) and Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974), held that absent a showing that a juvenile had an opportunity to consult with an interested and informed parent or adult or counsel before he waived his Miranda rights, his waiver will be ineffectual. In the instant case, no such consultation was conducted prior to appellant's waiver and, in fact, his mother did not see him until 2:30 p. m., some three hours after his arrest; his confession must, therefore, be suppressed under our McCutchen rationale. While appellant's arrest, confession and trial took place before our decisions concerning a juvenile's waiver of his Miranda rights, he is nevertheless entitled to the benefit of those decisions since he was on direct appeal at the time of our McCutchen decisions. See Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968).
Judgment of sentence reversed and case remanded for a new trial consistent with this opinion.
POMEROY, Justice (dissenting).
As the majority opinion notes, this Court has recently created a per se rule requiring ...