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decided: April 28, 1977.



Victor J. DiNubile, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones took no part in the consideration or decision of this case. Manderino, J., joined the opinion of the Court and filed a concurring opinion. Pomeroy, J., filed a dissenting opinion in which Eagen, C. J., joined.

Author: Nix

[ 472 Pa. Page 494]


This appeal again raises the troublesome issue as to when an accused under the age of 18 years may effectively

[ 472 Pa. Page 495]

    waive his constitutional rights prior to custodial interrogation.*fn1 For the reasons set forth hereinafter we are constrained to reverse the judgments of sentence and award the grant of a new trial.

On November 7, 1974, appellant, Barry Smith, a 17-year-old youth, fired six shots in the direction of another youth who was a member of a rival gang. The bullets missed the intended victim and struck Crystal Loney and Batina Brooks, two innocent bystanders, who were in the vicinity at the time of the shooting. Crystal, who was age 14 at the time of the shooting, died from a gunshot wound to the head several hours later. Although Batina was shot in the arm and head she fortunately recovered. Appellant was subsequently arrested, tried and convicted of murder of the first degree, possession of an instrument of crime, and carrying a firearm on public streets. Following a denial of post-trial motions, Smith was sentenced to life imprisonment under the murder indictment and received a sentence of one to two years for each of the weapon charges, both to run concurrently with the life sentence. This direct appeal followed.*fn2

Appellant argues that the inculpatory statement elicited during custodial interrogation following his arrest should have been suppressed because the record does not reflect an effective waiver of his Miranda*fn3 rights. After an analysis of this Court's recent cases relating to juvenile

[ 472 Pa. Page 496]

    waivers prior to custodial interrogation, the trial judge concluded:

"Under the guidelines of state and federal appellate cases, the likelihood that a young defendant did not understand the import and consequences of his confession does not warrant the exclusion of the statement where all the proprieties have been observed. This Court has grave misgivings that Barry Smith or any other juvenile of similar age, I.Q. and background, could knowingly, intelligently and competently waive his constitutional rights. However, all of the formal due process requirements were observed. Under the law in Pennsylvania at the time of this writing, there is no authority to exclude the statement." (Emphasis added).

Before turning to the merits of this appeal, we deem it necessary to comment upon the above-quoted observation of the trial court since, in our judgment, it touches upon the heart of the controlling considerations involving waiver of substantial constitutional rights. In our view, due process requires that a waiver by a youthful offender is effectuated only when it has been shown that the minor comprehended the full significance of the panoply of rights that protects him during custodial interrogation. We have insisted that the Commonwealth bear the burden of proving a knowing waiver. Commonwealth v. Hailey, 470 Pa. 487, 368 A.2d 1261 (filed January 28, 1977); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1976); Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court in

[ 472 Pa. Page 497]

    setting forth the required procedures for police interrogation of suspects warned:

The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.

Id. at 476, 86 S.Ct. at 1629.*fn4

We cannot accept the implication of the trial judge's statement, that the inquiry as to the effectiveness of the waiver of a minor is satisfied because the formal prerequisites have been met, as long as there is reason to question whether the minor, in fact, has comprehended his situation.

[ 472 Pa. Page 498]

We have devoted special attention to the observation of the learned trial judge because her concern capsulizes that which motivated a majority of this Court to seek a technique which would avoid the warning of a juvenile becoming a mere ritual wherein the effect of actual comprehension is ignored. Because of the unique disadvantage in the custodial interrogation process of the youthful accused due to his immaturity,*fn5 it was recognized that merely a consideration of the fact of youth in the totality of the circumstances formulation, Commonwealth v. Page 498} Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971); Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970); Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969), was inadequate to insure that a juvenile's waiver was indeed a knowing one.

In a series of our decisions beginning with Commonwealth v. Roane, supra,*fn6 we announced that the administering of Miranda warnings to a juvenile, without providing an opportunity to that juvenile to consult with a mature, informed individual concerned primarily with the interest of the juvenile, was inadequate to offset the disadvantage occasioned by his youth. The new rule appreciates that the inexperience of the minor affects not only his or her ability to understand the full implication and consequences of the predicament but also renders the judgment inadequate to assess the spectrum of considerations encompassed in the waiver decision.*fn7 It was therefore reasoned that the impediment of immaturity can only be overcome where the record ...

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