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COMMONWEALTH PENNSYLVANIA v. KENNETH BARNES (11/18/78)

decided: November 18, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH BARNES, APPELLANT



No. 483 January Term, 1975, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia Trial Division, Criminal Section, August Term, 1974, No. 1336.

COUNSEL

Alexander Hemphill, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Neil Kitrosser, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., filed a dissenting opinion in which Eagen, C. J., and Larsen, J., join.

Author: Nix

[ 482 Pa. Page 557]

OPINION

This is an appeal*fn1 from a judgment of sentence of ten to twenty years imprisonment entered after a non-jury trial finding appellant guilty of murder of the third degree. See 18 Pa.C.S.A. ยง 2502(c) (Supp.1978-79). The sole issue presented is whether certain inculpatory statements by appellant, then a juvenile, were taken by police in violation of the waiver standards governing juvenile confessions as set forth in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), and its progeny.*fn2 The trial court found an effective waiver. For the reasons set forth below, we disagree and reverse judgment and order a new trial.

[ 482 Pa. Page 558]

The facts are as follows: On August 5, 1974 at about 8:00 p. m., appellant, then fifteen years of age, was arrested by Philadelphia police in connection with the July 20th stabbing death of another juvenile, Thomas Anthony. Following his arrest, appellant was transported to the 17th District Police Station where he remained until 9:30 p. m. at which time he was transported to the Police Administration Building (PAB). Upon arriving at the PAB, appellant was asked whether he wanted his father present; appellant stated that he did not. Sometime between 9:45 p. m. and 10:00 p. m. appellant was questioned by a Detective Paris, without first being given Miranda*fn3 warnings. In response, appellant indicated his name, age, residence, school grade, the fact that he could read and write, and that his parents were separated and he resided with his father; these responses were reduced to a written memorandum, which appellant read and signed. Shortly thereafter, at about 10:00 p. m., Detective Paris informed appellant of the offense in question and gave him the Miranda warnings. Appellant indicated, both orally and in writing, his desire to waive his Miranda rights. At about the same time, appellant was again asked whether he wanted his father to be present; again he stated that he did not. Sometime between 10:00 p. m. and 11:00 p. m., appellant admitted his participation in the killing of Thomas Anthony. This statement was transcribed and appellant read and signed it.

Except for a visit to the lavatory at about midnight and a meal at about 12:30 a. m., appellant was left alone in the PAB interrogation room from 11:00 p. m. until 4:00 a. m. Although the record does not conclusively establish the exact time of appellant's arraignment, it is safe to infer that appellant was arraigned sometime shortly after 4:00 a. m. Just before being arraigned, appellant telephoned his father, but appellant was informed by his sister that the father was already enroute to the PAB, in response to a telephone call from the Juvenile Division. Appellant's father did arrive in time to talk to appellant at the time of arraignment.

[ 482 Pa. Page 559]

Appellant moved to suppress his inculpatory statements on the grounds that they were not given voluntarily. The trial court denied the motion and ruled that the statements would be admissible at trial. In written post trial motions appellant again challenged the admissibility of the statements.*fn4 The trial court upheld the earlier finding that the statements were admissible and entered judgment on the verdicts. This appeal followed.

The underlying rationale for this Court's special solicitousness toward juveniles confronted by police interrogation was explained recently in Commonwealth v. ...


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