Martin A. Ostrow, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Gaele McLaughlin Barthold, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, J., files a dissenting opinion in which Roberts, J., joins. Manderino, J., files a dissenting opinion.
Appellant, Arthur Baylis, was convicted by a jury of murder of the third degree, possessing an instrument of crime, and possessing a prohibited offensive weapon. Post-verdict motions were denied, and appellant was sentenced to five-to-twenty years for the murder conviction and one-to-two years on the weapons conviction. This appeal followed.*fn1
The facts are as follows. On December 6, 1974, Wayne Wingfield, the victim, was shot and killed as he was leaving a State Liquor Store at 46th Street and Lancaster Avenue in Philadelphia. Two of three eyewitnesses identified appellant as the person who shot the victim.
Appellant was arrested some six months later, on June 15, 1975, at 10:30 p. m. Appellant, who was seventeen years old, was taken to the Police Administration Building and
was given his constitutional rights, which he waived. However, he was never given the opportunity to consult with an interested adult before waiving his rights. Following the waiver, appellant gave an inculpatory statement.
Appellant raises one issue on this appeal. He argues that the suppression court erred in holding that his confession was admissible. He believes that since he was a minor at the time of interrogation, failure to provide an opportunity for consultation with an interested adult vitiates his waiver of constitutional rights. As an alleged ineffective waiver was involved, appellant claims the statement should have been suppressed on the basis of our decision in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).
We need not, however, reach the merits of appellant's claim. Pa.R.Crim.P. 323(d) provides:
"The application shall state specifically the evidence sought to be suppressed, the specific constitutional grounds rendering the evidence inadmissible, and shall state with particularity the ...