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COMMONWEALTH PENNSYLVANIA v. GARY THOMAS (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY THOMAS, APPELLANT



No. 330 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division at No. 2571, 1976.

COUNSEL

Myra J. Werrin Sacks, Assistant Public Defender, Harrisburg, for appellant.

J. G. Penny, with him Reid H. Weingarten, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion in which Cercone, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 258 Pa. Super. Page 334]

Appellant, Gary Thomas, was tried by a judge in the Court of Common Pleas of Dauphin County and found guilty of aggravated assault. Post-trial motions were denied, and appellant was sentenced to an indeterminate term at the State Correctional Institution at Camp Hill. Appellant filed this appeal, and we affirm the decision of the lower court.

Appellant, age 15, was an abscondee from a youth development center and was staying with his mother. At that time, on October 30, 1976, Arthur Prinz was beaten near his home. At approximately 11:00 a. m. on October 31, 1976, police arrived at the Thomas home to transport appellant to headquarters. Appellant's mother was informed that the police would be questioning Gary, that she could be present, and that they would contact her. Police read the appellant the Miranda warnings while en route to the Dauphin County Prison.

Later that day, police returned to the Thomas home and further explained the situation to appellant's mother. Between 9:00 a. m. and 10:00 a. m. on November 1, 1976, police made several attempts to call Mrs. Thomas to inform her of the upcoming questioning of her son at the Dauphin County Prison. When Mrs. Thomas did not answer, the police proceeded to the prison and called upon a prison counselor to speak to appellant before the interrogation began. The counselor spoke with Gary for about five minutes, while the police remained in the same room, but at the opposite end of a cafeteria-like table. The counselor and appellant were alone only while one policeman took a phone call outside the room and another stood outside the door. Appellant was read his Miranda warnings again, they were reviewed, and

[ 258 Pa. Super. Page 335]

    the interrogation began. It was during this 15-minute questioning session that appellant made an inculpatory statement.

At the suppression hearing, the lower court judge refused to suppress the incriminating statement made to the police at the Dauphin County Prison. The issue before us is whether the judge erred in denying the motion to suppress because the juvenile was in detention and may not have voluntarily waived his constitutional rights due to his alleged failure to consult with a parent, attorney or other interested adult.

Waiver of the constitutional privilege against self-incrimination and the right to counsel must be a voluntary, knowing and intelligent decision. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). When a juvenile is involved, the circumstances surrounding the waiver must be even more carefully scrutinized to insure the proper standards are met. Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). In Pennsylvania, a series of decisions has announced that an attempted waiver by a juvenile of his fifth and sixth amendment rights during a custodial interrogation will not be effective "absent a showing that a juvenile had an opportunity to consult with an interested and informed parent or adult or counsel before he waived his Miranda rights . . ." Commonwealth v. Chaney, 465 Pa. 407, 409, 350 A.2d 829, 830 (1975).*fn1 In these cases, the Commonwealth has the burden of proving that the juvenile waived his rights voluntarily. Commonwealth v. Hailey, 470 Pa. 488, 368 A.2d 1261 (1977). The Commonwealth must prove at least three things in order to meet its burden: first, that the adult involved was one interested in the welfare of the juvenile accused; second, that the adult

[ 258 Pa. Super. Page 336]

    was aware of the rights of the accused; and third, that the minor had an opportunity to consult with the adult. Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977).

Appellant contends, in this case, that the Commonwealth has not met its burden because the prison counselor who spoke to Thomas was not an adult interested in his welfare. We find this contention to be without merit. The counselor involved here had a history of employment in juvenile and other criminal justice work.*fn2 The nature of his employment made him well aware of the Miranda warnings and their significance in appellant's case. Finally, he did have an opportunity to discuss the situation with appellant before the interrogation began, even though there was not total privacy during their session. There was no evidence of any abusive or coercive tactics utilized by the police during appellant's detention or interrogation. Also, the police had made a reasonable effort to contact Mrs. Thomas to inform her of the interrogation prior to the session.

We believe these facts distinguish this case from the cases relied upon by appellant in his brief. For example, in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974), the defendant's mother indicated her willingness to follow her son to the station, but was ignored. Police interrogated the defendant without a prior consultation with a parent, attorney, or other interested adult, and the court held that defendant's inculpatory statement should have been suppressed. Similarly, in Commonwealth v. Lee, 470 Pa. 401, 368 A.2d 690 (1977), defendant's parents were not phoned until after the questioning took place. The confession was suppressed.

In contrast, this case seems more closely analogous to Commonwealth v. McFadden, 470 Pa. 604, 369 A.2d 1156 (1977). There, defendant was arrested in the presence of his

[ 258 Pa. Super. Page 337]

    mother, who accompanied him to the station. They were alone for ten minutes, after which neither asked to see the other. The rule was applied, and the court found it to be satisfied because they had the opportunity to consult and understood the constitutional rights involved, due to previous dealings with police. Hence in the case before us, although appellant's mother was not available to meet with him, the prison counselor, who may have been more capable of explaining appellant's rights to him, did speak with him prior to the questioning. Although the counselor's "concern" might not have had the personal depth of that of a parent, there is no indication he was not interested in the welfare of appellant.

Since we find that the Commonwealth has met its burden of proof for the juvenile's waiver of his Miranda rights, we must now consider the voluntariness of the statements made by using the totality of the circumstances test, applicable to the voluntariness of confessions generally. Commonwealth v. McFadden, supra; Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971). Appellant appeared normal in all respects to the police and the counselor involved in this case. Although he was only fifteen at the time of the incident, appellant had been involved with the police before. On this occasion, the police read him the Miranda warnings twice before he answered questions, and appellant indicated he understood the warnings. There was no evidence of abusive conduct. Based on these facts, we conclude that the waiver and confession were knowingly, intelligently, and voluntarily entered.

Judgment of sentence affirmed.

SPAETH, Judge, dissenting:

I believe that appellant's confession should have been suppressed, and that we should therefore order a new trial.

[ 258 Pa. Super. Page 338]

-1-

In deciding whether a confession should be suppressed, a court may choose between two procedures, or rules. The court may only require that the prosecutor prove that the confession was intelligent and voluntary; in deciding whether the prosecutor has done this, the court will consider evidence of the character of the defendant and of the circumstances in which the confession was obtained. Or the court may impose an additional, and preliminary, requirement, to the effect that the evidence that the confession was intelligent and voluntary will not be considered unless the prosecutor first proves that before the confession was obtained, certain things were done; if the prosecutor does not prove that those things were done, that will end the matter, and the confession will be suppressed. Because of its drastic nature, this procedure is often called a per se rule.

For some time the courts adopted the first of these two possible procedures. Many persons argued that this was unfair to defendants, and that the courts should adopt a per se rule. The gist of their argument was that as a practical matter it was not possible to recreate in the court room the circumstances under which confessions had been obtained; in fact, it was said, often the circumstances had been such as to overbear a defendant. This argument prevailed when the United States Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that the prosecutor must prove that before a person in custody was questioned, he was told of his right to remain silent and to have the assistance of counsel, and that if the prosecutor did not prove this, the confession would be suppressed. "No amount of circumstantial evidence," said the Court, would suffice to overcome the effect of the failure to tell the accused his rights. 384 U.S. 471-72, 86 S.Ct. 1602.

The question then arose whether in the case of a confession obtained from a juvenile the courts should impose still another additional, and preliminary, requirement. In other words: Should the prosecutor have to prove, first, that ...


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