decided: October 23, 1979.
COMMONWEALTH OF PENNSYLVANIA
GARY THOMAS, APPELLANT
No. 5 May Term, 1979, Appeal from the Order of the Superior Court at No. 330 March Term, 1977.
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.
[ 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 own immaturity could not." Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325 (1962). Accord, Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).*fn4
[ 486 Pa. Page 572]
The Commonwealth contends that Reed was an "interested adult" based on his past employment as a youth counselor. Reed, however, must exhibit a concern for the juvenile similar to that of either lawyer or parent. As Judge Spaeth, joined by Judge Cercone, dissenting in the Superior Court, observed
"Any other interpretation of the Supreme Court's requirement of an 'interested adult' would make no sense, for it would read the Court as saying that its requirement could be satisfied in either of two, mutually inconsistent, ways: either by affording the juvenile access to one of two persons vitally interested in his welfare -- an attorney or parent -- or by affording him access to a person only casually interested."
Commonwealth v. Thomas, 258 Pa. Super. 332, 392 A.2d 820 (1978). The record reflects that Reed's concern cannot be equated with that of an attorney, professionally representing the juvenile's interest. Nor can Reed's concern be equated with that of a parent. The Commonwealth's failure to provide appellant the required opportunity to consult with an "interested adult" as our case law mandates, compels the suppression of appellant's inculpatory statement.*fn5
Judgment of sentence reversed and a new trial granted.
FLAHERTY, Justice, dissenting.
I cannot agree with the majority's failure to characterize prison counselor Reed as an "interested adult." We should not require that the intensity of interest as an "interested
[ 486 Pa. Page 573]
adult" equal that of a parent, as one is a blood relationship while the other is that of a trained professional. Rather, the proper test for determining whether one qualifies as an interested adult is whether that person holds the accused's interest and welfare, as opposed to the prosecution's interest, as his primary concern.
I believe Mr. Reed met this test. He was a professional counselor, concerned with the problems of troubled youths. He was in no way connected with the prosecution, so there was no risk that his interest would be swayed from the side of the appellant to the side of the prosecution. It cannot be said, as a matter of law, that a prison counselor is so connected with the interests of the prosecution as to render him uninterested in the welfare of the prisoner. Accordingly, I would affirm the judgment of sentence.