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COMMONWEALTH PENNSYLVANIA v. GARY THOMAS (10/23/79)

decided: October 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY THOMAS, APPELLANT



No. 5 May Term, 1979, Appeal from the Order of the Superior Court at No. 330 March Term, 1977.

COUNSEL

Myra Werrin Sacks, Asst. Public Defender, for appellant.

Marion E. MacIntyre, Second Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Flaherty, J., files a dissenting opinion. Eagen, C. J., and Larsen, J., dissent.

Author: Roberts

[ 486 Pa. Page 570]

OPINION OF THE COURT

Appellant, fifteen years old at the time of arrest, asserts that an inculpatory statement he gave to police during custodial interrogation should have been suppressed. Appellant's claim is based on this Court's requirement that before waiving Miranda rights a juvenile must be afforded an opportunity to consult with an attorney, parent or other "interested adult." The Commonwealth, on the other hand, contends that the prison counselor it made available to appellant and with whom appellant spoke is an "interested adult" for purposes of this rule. We agree with appellant, reverse judgment of sentence and grant appellant a new trial.

On October 30, 1976, police arrested appellant and took him to the juvenile section of the Dauphin County Prison. The following day, after two unsuccessful attempts to contact appellant's mother, police sought to question appellant. In an attempt to provide appellant the required access to an interested adult, the police called upon Ralph Reed, a counselor of adult prisoners at the prison. Before becoming a prison counselor Reed had served as a county detective, a probation officer and a police officer. During their brief conference of five minutes, Reed advised appellant to "cooperate with the police and tell them what happened." Following the conversation with Reed, appellant gave police an incriminating statement.*fn1

After transfer to the Criminal Division of the Court of Common Pleas of Dauphin County, appellant unsuccessfully moved to suppress the statement. In a non-jury trial, appellant was convicted of aggravated assault. Post-trial motions were denied and appellant was sentenced. A divided

[ 486 Pa. Page 571]

Superior Court affirmed the conviction and this Court granted appellant's petition for allowance of appeal.*fn2

The Commonwealth has the burden of establishing that, prior to waiving fifth amendment rights, a juvenile had the opportunity to consult with an "interested adult." This individual must be both interested in the juvenile's welfare and informed and aware of the juvenile's fifth and sixth amendment rights. See e. g., Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978). This Court's "interested adult" cases rest upon a concern that juvenile immaturity may preclude self-protection from overbearing police interrogation.*fn3 The rule intends that overbearance may be avoided by consultation with individuals such as a "lawyer, adult relative or friend," who can provide a juvenile with "the protection which his ...


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