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decided: November 18, 1978.


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.


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]


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. Smith, 472 Pa. 492, 372 A.2d 797 (1977):

"In a series of our decisions beginning with Commonwealth v. Roane, supra, [459 Pa. 389, 329 A.2d 286], we announced that the administering of Miranda warnings to a juvenile, without providing an opportunity to that juvenile to consult with a mature, informed individual concerned primarily with the interest of the juvenile, was inadequate to offset the disadvantage occasioned by his youth. The new rule appreciates that the inexperience of the minor affects not only his or her ability to understand the full implication and consequences of the predicament but also renders the judgment inadequate to assess the spectrum of considerations encompassed in the waiver decision. It was therefore reasoned that the impediment of immaturity can only be overcome where the record establishes that the youth had access to the advice of an attorney, parent, or other interested adult and that the consulted adult was informed as to the constitutional rights available to the minor and aware of the consequences that might follow the election to be made."

[ 482 Pa. Page 560]

    been offset to some degree. Since the ultimate decision, even after the consultation, must be made by the juvenile, his immaturity can not be completely removed from the equation. At best we can hope by this process to impress upon him the seriousness of the decision and to apprise him of his options and the consequences that might follow the path he elects. The Commonwealth lays great stress on the fact that appellant expressed a desire not to speak with his father. This is the type of decision that reflects the immaturity that the doctrine is designed to guard against. Obviously the appellant was more concerned with parental disapproval and failed to perceive the more important need at that moment for consulting with one who was concerned with his welfare. It is only after a meaningful consultation that we can be satisfied that the juvenile possesses an informed judgment capable of making such a grave decision. We therefore decline to adopt the argument urged by the Commonwealth.*fn5

Judgment of sentence is reversed and a new trial is ordered.

POMEROY, Justice, dissenting.

It would perhaps suffice in this case merely to repeat my long-held views (1) that this Court's rules regarding waivers of Miranda rights by juveniles are "unwise, unnecessary, and unwarranted,"*fn1 and (2) that the application of these rules to

[ 482 Pa. Page 562]

    this arrest and interrogation, occurring as they did before this doctrine had evolved*fn2 is particularly without justification, since the exclusion of appellant's statement "is not a response to police activity in disregard of a rule of law which they knew or should have known . . ."*fn3 This case, however, warrants some additional discussion, because of the majority's holding that the fact that before he made his inculpatory statement appellant stated twice that he did not want his father to be present is not evidence of a knowing and intelligent waiver, but rather only of appellant's "immaturity."

The majority now states that the opportunity to consult with an interested adult is not enough; in addition, it must be shown that there was a "meaningful consultation" between the juvenile and an adult who is aware of the juvenile's rights before a valid waiver can be said to have taken place. Opinion of the Court, ante at 557.*fn4 Thus the Court

[ 482 Pa. Page 563]

    has made explicit what prior cases had strongly implied.*fn5 Although the Court's conceptual basis is now consistent, today's decision, like those which have preceded it, fails to explain the basis for the doctrine's central assumption, viz., that all persons under the age of eighteen must be deemed incapable of ever making on their own the decision of whether to talk to the police in a custodial setting. For my own part, "I adhere to the view that some minors in some circumstances are capable of effectively waiving their constitutional rights without the advice of any adult and that no purpose is served by a per se rule which excludes from evidence a confession made by any juvenile whether or not the traditional test of voluntariness would mandate such exclusion."*fn6 Hence this dissent.

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