Nos. 124 and 171, January Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Imposed on Indictment Nos. 705 to 707, October Term, 1975.
Eugene H. Clarke, Jr., Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Joseph C. Murray, Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., and Larsen, J., dissent.
In March 1976, appellant was tried before a jury on charges of murder of the second degree, robbery and burglary. That trial ended in a hung jury and a mistrial was declared. In August 1976, after a non-jury trial, appellant was convicted of all charges. Post-trial motions were denied. Appellant was sentenced to life imprisonment for murder and concurrent terms of five to ten years for robbery and burglary. Appellant appealed directly to this Court from the judgment of sentence on the murder conviction. Thereafter his appeals to the Superior Court from the judgments of sentence for robbery and burglary were consolidated in this appeal.*fn1
Appellant argues that although he was a juvenile at the time of his arrest he was not provided an opportunity to consult with an interested adult and therefore his confession should have been suppressed. The record supports appellant's claim. We reverse and remand for a new trial.
Mrs. Inez Strom, an elderly woman, was beaten and robbed in her home in Philadelphia on May 9, 1975. She was taken to a hospital where she died on June 22, 1975. On July 28, 1975, appellant, a seventeen-year-old juvenile, was questioned by police at the Police Administration Building in connection with the crime. Appellant's mother was also questioned separately. Both were informed of their Miranda rights prior to interrogation and at the conclusion of questioning were permitted to leave.
More than six weeks later, on September 15, 1975, at 8:40 a. m., appellant was arrested by police at his home. The evidence shows that the police offered to permit appellant's mother to accompany him to the Police Administration Building in a police car but that she declined, saying that she would find her own ride. The questioning of appellant
began at 9:10 a. m. after he was informed of his Miranda rights. At 2:36 p. m., following interrogation and a polygraph examination, appellant confessed to robbing and striking the victim. Appellant's mother did not arrive at the Police Administration Building until 3:25 p. m., after the statement was signed. There is no evidence in the record that the juvenile appellant was ever informed that he had a right to consult with an interested adult prior to his confession.*fn2
Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978), states the prerequisites to a valid waiver of fifth and sixth ...