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MILLER APPEAL (12/01/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 1, 1975.

MILLER APPEAL

Appeal from order of Court of Common Pleas of Montgomery County, No. 5585-1974-20, in case of In the Matter of Craig Miller.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Spaeth, J., concurs in the result.

Author: Price

[ 237 Pa. Super. Page 434]

On December 26, 1974, appellant, Craig Miller, was adjudicated a delinquent and in violation of his probation as the result of his participation in an armed robbery of a gasoline station. The only issue raised on this appeal is whether the lower court erred in refusing to suppress the appellant's confession.*fn1

Testimony at the adjudication hearing established that at approximately noon on November 25, 1974, Craig Miller and two other boys, Anthony Towson and Douglas Tucker, walked into the Pottstown Police Department and informed the desk attendant that they had heard they were wanted as suspects in a robbery. Towson was taken to the Detectives' Room, informed of his constitutional

[ 237 Pa. Super. Page 435]

    rights, and questioned about the armed robbery of Bart's Sunoco Station on November 14, 1974. Towson admitted that he had acted as a "lookout," and stated that Craig Miller had committed the robbery by pointing a gun at the attendant, demanding money, and walking away with about $300. Towson later signed a three-page statement to the same effect.

Craig Miller was then interviewed by police detectives. Although Miller denied that he was informed of his rights prior to any questioning, two detectives and a police secretary testified that he had been so advised. During the course of the interview, appellant orally admitted his participation in the robbery. Following his statement, appellant was placed in a cell while the police contacted a juvenile probation officer at Montgomery Hall concerning placement. The detective also attempted to contact appellant's parents, and after several efforts failed, finally located appellant's father at work.*fn2 He was returned to the detectives' office, where he reiterated his earlier statement. On this occasion, the confession was typed by the secretary and signed by Miller.*fn3

At the hearing, both Miller and Towson denied that they had robbed the service station, and testified that they signed the confessions because they wanted to stay out of jail.*fn4 A motion to suppress the confession on the basis of coercion was denied by the lower court judge, who specifically credited the testimony of the police and discredited that of appellant and Towson.

[ 237 Pa. Super. Page 436]

Appellant now contends that the lower court erred in refusing to suppress the statement because he had not been afforded the opportunity to consult with his parents or an attorney at the police station. We find no error in the instant case.

It is well established that the Commonwealth has the burden of proving by a preponderance of the evidence that an accused's confession was the product of a knowing and intelligent waiver of his constitutional rights. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). Where the accused is a person of tender years, the attending circumstances must be scrutinized with special care before an intelligent and knowing waiver is declared. Commonwealth v. Fogan, supra; Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972).

Recently, the Pennsylvania Supreme Court stated: "Specifics such as age, intelligence, mental and physical development of the minor suspect are relevant factors in a determination as to whether or not the admissions were the product of a free and unfettered will and made only after a full appreciation of the rights that protect him." Commonwealth v. Starkes, 461 Pa. 178, 185, 335 A.2d 698, 701 (1975).

Another factor in the totality of the circumstances was discussed in Commonwealth v. Roane, 459 Pa. 389, 394, 329 A.2d 286, 288 (1974), wherein the Supreme Court stated: "An important factor in establishing that a juvenile's waiver of his constitutional rights was a knowing and intelligent one would be evidence that, before he made his decision to waive those rights, he had access to the advice of a parent, attorney, or other adult who was primarily interested in his welfare."

Applying the criteria suggested by the court in Starkes and Roane, we find that the appellant voluntarily, knowingly and intelligently offered his confession. Appellant

[ 237 Pa. Super. Page 437]

    was seventeen years of age at the time of his arrest, and had completed nine years of formal education. He is a person of average intelligence. This was not his first contact with the police. In fact, appellant had been through the entire procedure involved in this case, including detention and placement, on other occasions. Moreover, he voluntarily surrendered himself to the police after he had learned that he was a suspect. These factors, coupled with the sworn testimony of three reputable witnesses that appellant had been advised of his rights before confessing, lead us to conclude that the lack of parental consultation in this case requires no reversal.*fn5

The order of the lower court is affirmed.

Disposition

Order affirmed.


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