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RUTH APPEAL (03/29/76)

decided: March 29, 1976.

RUTH APPEAL


Appeal from adjudication of Court of Common Pleas, Family Division, of Philadelphia, Jan. T., 1975, No. 488, in case of In The Interest of: David Ruth.

COUNSEL

Joseph M. Casey, Albert John Snite, Jr., and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Richard P. Myers, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for appellee.

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

Author: Hoffman

[ 239 Pa. Super. Page 454]

Appellant contends that his adjudication of delinquency

[ 239 Pa. Super. Page 455]

    of arson and conspiracy was improper for two reasons: first, because his confession was the "fruit" of his illegal arrest,*fn1 and second, because his confession was procured without a knowing and voluntary waiver of his Miranda rights.

On January 19, 1975, a Penn Central railroad car at Whitaker and Luzerne Streets, Philadelphia, was set on fire and destroyed. Officer Robert Kriza, a security officer employed by the Penn Central Transportation Company, was dispatched to investigate the causes of the fire. During the officer's investigation, an unidentified individual informed him that a group of boys had been playing by the railroad tracks earlier that evening. The citizen-informer described two of the boys as follows: one was wearing a blue jacket, blue pants, and a red knit cap, and the other was wearing a blue jacket and light blue ski cap. Approximately one hour later, Kriza spotted the appellant and three other boys, two of whom matched the informer's description. The four boys told the officer that although they were not responsible for the fire, they had heard that a boy named "Train" set it. The boys agreed to help the officer find "Train," but they were unable to locate him after driving around the neighborhood for forty-five minutes. Kriza then drove the boys to the police station so that they could repeat their information. At the police station, the boys were separately questioned by Juvenile Aid Officer Dougherty. Believing the boys to be suspects, Officer Dougherty gave each boy his Miranda warnings before commencing interrogation. During his one-half hour interrogation, the appellant, age fourteen, confessed to starting the fire with "Train."

On May 29, 1975, appellant filed a motion to suppress his confession, which was denied. At his hearing in Juvenile Court, appellant was adjudicated delinquent of

[ 239 Pa. Super. Page 456]

    arson and conspiracy. Appellant's oral post-trial motions were denied and he was placed on probation.*fn2

It is well-established that the Commonwealth has the burden of proving, by a preponderance of the evidence, that an accused's confession was secured after a knowing, intelligent, and voluntary waiver of his constitutional rights. Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). A confession is voluntary if it is determined that the confession is "the product of an essentially free and unconstrained choice by its maker." Culombe v. Connecticut, 367 U.S. 568, 602 (1961). See also Commonwealth v. Goodwin, supra. Where the accused is a child of tender years, courts have recognized that the attending circumstances must be closely scrutinized before a knowing, intelligent, and voluntary waiver is declared. Commonwealth v. Fogan, supra; Commonwealth v. Porter, 449 Pa. 623, 294 A.2d 890 (1972). "Specifics such as age, intelligence, mental and physical development of the minor ...


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