Henry J. Lunardi, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien and Nix, JJ., concurred in the result. Pomeroy, J., filed a dissenting opinion in which Eagen, C. J., and Larsen, J., joined.
Appellant, Clifford Walker, was tried before a jury and found guilty of murder in the first degree, criminal conspiracy, robbery, and burglary. Post-verdict motions were denied, and appellant was sentenced to life imprisonment on the murder charge, and concurrent seven and one-half to fifteen year sentences for robbery and burglary. The judgment of sentence for murder was appealed directly to us; the judgments of sentence for robbery and burglary were taken to the Superior Court and subsequently transferred to this Court.
Appellant contends that the trial court erred in failing to suppress all statements given to the police by the appellant. The trial court did suppress some statements because of an unnecessary delay between arrest and arraignment, but refused to suppress other statements made earlier in time than those suppressed. As a result of the pretrial ruling, the statements in question were introduced by the prosecution during appellant's trial. Appellant continued his challenge to the statements in post-verdict motions and also in this appeal.
The appellant argues that all statements which he gave to the police should have been suppressed because appellant, who was a juvenile, was denied his right to
consult with an interested and informed parent, adult, or counsel. The suppression court denied relief on this ground even though it found that appellant was a juvenile and was denied the right to consultation. It did so, however, on April 24, 1974, prior to our decisions holding that all juveniles are entitled to consultation before they can effectively waive their constitutional rights. Under those cases, appellant, who is before us on direct appeal, is entitled to relief. We agree therefore with appellant that all statements should have been suppressed. At the time of his arrest, and at the time the statements were obtained, appellant was seventeen years of age. A juvenile cannot effectively waive Miranda rights absent an opportunity to consult with an interested and informed parent, adult, or counsel. Statements made by a juvenile without this protection must be suppressed. Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977), Commonwealth v. Gaskins, 471 Pa. 238, 369 A.2d 1285 (1977).
The prosecution does not argue that appellant was given an opportunity for the required consultation. The prosecution, however, argues that appellant has waived his right to raise this issue because no objection was made to the admission of the statements during trial. An objection at trial, however, would have been a useless act. Rule 323(j) of the Pa.R. of Crim.P. states:
"If the court determines that the evidence is admissible such determination shall be final, conclusive and binding at trial except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its admissibility." (Emphasis added.)
Under the above rule the determination made pretrial is final, conclusive, and binding at trial. The trial judge cannot overrule the admissibility determination made by the pretrial suppression judge. Accordingly, the appellant cannot be said to have ...