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decided: October 7, 1977.



Charles Basch, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Marianne E. Cox, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., joins in this opinion and filed a concurring opinion. Pomeroy, J., filed a dissenting opinion in which Eagen, C. J., joins. Nix, J., filed a dissenting opinion.

Author: Roberts

[ 474 Pa. Page 542]


Appellant was convicted of murder of the third degree and possession of an instrument of crime. Post-trial motions were filed and denied. Appellant appeals from the

[ 474 Pa. Page 543]

    conviction of murder of the third degree.*fn1 Appellant contends that a statement taken from him during custodial interrogation should have been suppressed because he was not afforded an opportunity to consult with an attorney, parent or other interested and informed adult prior to waiving his right to counsel and privilege against self-incrimination. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).*fn2 We agree, reverse judgment of sentence

[ 474 Pa. Page 544]

    and grant appellant a new trial.*fn3

Appellant was seventeen years old when he was arrested on September 9, 1974. He was arrested at 12:30 a. m. at a friend's apartment on the same hallway as the apartment where he resided with his mother. He was taken to the Police Administration Building and placed in an interrogation room at 1:30 a. m. The police read him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant agreed to answer questions without the presence of an attorney.*fn4

The police then began to interrogate appellant. The interrogation continued until 2:45 a. m., when appellant signed a written statement that he had stabbed the victim. Appellant was left alone in the interrogation room until 3:30 a. m., at which time he was allowed to have a drink of water and to call his mother. At 4:40 a. m., he was transferred to the identification unit for detention pending arraignment. Appellant was arraigned between 9:00 a. m. and 2:00 p. m.

Appellant asserts that the Commonwealth has not established that he made a knowing and intelligent waiver of his Miranda rights because he was not afforded an opportunity to consult with an attorney, parent or other interested and informed adult beforehand. Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977); Commonwealth v. Gaskins, 471 Pa. 238, 369 A.2d 1285 (1977); Commonwealth v. Lee, 470 Pa. 401, 368 A.2d 690 (1977); Commonwealth v. Hailey, 470 Pa. 488, 368 A.2d 1261 (1977); Commonwealth v. Webster,

[ 474 Pa. Page 545466]

Pa. 314, 353 A.2d 372 (1976); Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663 (1976); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1975); Commonwealth v. Riggs, 465 Pa. 208, 348 A.2d 429 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).

In Commonwealth v. Smith, supra, Mr. Justice Nix, writing for a majority of this Court, stated:

"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. . . . [T]he 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, [is] inadequate to offset the disadvantage occasioned by his youth. . . . [T]he impediment of immaturity can only be overcome where the record establishes that the youth had access to the advice of an attorney, parent, or other interested adult and that the consulted adult was informed as to the constitutional rights available to the minor and aware of the consequences that might follow the election to be made."

Id. 472 Pa. at 496-499, 372 A.2d at 799-800. (citations omitted) (footnotes omitted) (emphasis added except for the word "comprehended" which was emphasized in the original).

Appellant was not given an opportunity to consult with an attorney, parent or other interested and informed adult before he was subjected to custodial interrogation. Accordingly, the Commonwealth has not sustained its burden of proof that appellant knowingly, intelligently and voluntarily waived his Miranda rights. Appellant's statement should have been suppressed.

Judgment of sentence reversed and a new trial granted.

[ 474 Pa. Page 546]

PACKEL, Justice, concurring.

Having adopted a per se rule of fairness in questioning arrested juveniles, this Court should not depart from its recent decisions on the basis that occasionally a factual exploration might indicate that the rule is an unnecessary protection. Accordingly, I join in the opinion of the majority.

POMEROY, Justice, dissenting.

The Court again gives retroactive application to its per se exclusionary rule relative to juvenile confessions, and I therefore again dissent. See, e. g., Commonwealth v. Lee, 470 Pa. 401, 368 A.2d 690 (1977) (dissenting opinion of POMEROY, J., joined by JONES, C. J. and EAGEN, J.). This rule was embodied in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, a decision announced on July 7, 1975. The trial of James Jamison, this appellant, commenced on March 6, 1975. The Court makes this retrospective application notwithstanding its acknowledgment that the rule of McCutchen finds its antecedents in the decision of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966).*fn1 That decision, of course, was for sound policy reasons accorded only prospective applicability to cases wherein trials were commenced after the date of its announcement. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971) (Johnson adopted as a matter of state law). Inasmuch as the prospectivity rationale employed by the Supreme Court in Johnson is, perforce,

[ 474 Pa. Page 547]

    wholly applicable to the same question regarding this Court's McCutchen holding, I see no basis whatever for this Court to chart a different course by according retrospective effect to its Miranda -based decision.*fn2 Indeed, no justification for doing so is vouchsafed to us in its opinion. I respectfully dissent.

NIX, Justice, dissenting.

In n. 2 the majority attempts to explain why the issue of effective juvenile waiver has been preserved for our review in this proceeding. Concluding that a general challenge to the knowing, intelligent and voluntary nature of the election by the minor to forego his constitutional rights preserves this issue, the majority proceeds to grant relief on the grounds that this juvenile did not receive the benefit of consultation with a concerned interested and informed parent or other adult. I disagree because this latter claim was clearly waived.

Trial counsel should have been aware at the time of the suppression hearing of this Court's ruling in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). Therein we said,

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. Id. 459 Pa. at 394, 329 A.2d at 288.

Even though this Court in that decision did not expressly adopt a per se rule,*fn1a we nevertheless pointed to the particular

[ 474 Pa. Page 548]

    significance of the minority of an accused in assessing the effectiveness of the waiver of a youthful offender. Therefore, since appellant's trial counsel attacked the confession on the general ground of voluntariness and knowledgeableness, and failed to focus upon his immaturity in assessing the waiver's effectiveness as suggested in Roane, the latter issue is not preserved for appeal.*fn2a Commonwealth v. Branham, 467 Pa. 605, 359 A.2d 766 (1976); Commonwealth v. Gilmore, 464 Pa. 464, 347 A.2d 305 (1975); Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975).

In recognizing the vulnerability of his first argument attacking the validity of appellant's waiver of his Miranda rights, appellant's counsel in his brief alternatively argues that trial counsel was ineffective for failing to raise the Roane issue. The latter argument presents a more viable issue and should have been addressed by this Court.

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