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.
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
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
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, ...