No. 1250 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Trial Division, Criminal Section, at No. 1058, October Term, 1978.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
[ 281 Pa. Super. Page 117]
Appellant, a juvenile, was tried as an adult by a judge sitting without a jury, and was convicted of possession of heroin with the intent to deliver. Post-verdict motions were denied and appellant was sentenced to one to seven years imprisonment. On this appeal he argues that the lower court erred in refusing to grant his motion to suppress a statement he made to the police after his arrest.*fn1
Appellant was arrested on August 1, 1978, at approximately 8:00 p. m., when he was discovered in possession of a large quantity of heroin. Appellant was taken to the local police district building, and then to the narcotics unit at the Philadelphia Police Administration Building. One of the officers at the narcotics unit recognized appellant and informed the arresting officer that appellant was only seventeen years old and that his father was a police officer. Appellant's father was called, and he arrived at the Police Administration Building approximately one hour later. One of the officers told the father the circumstances of appellant's arrest and the amount of heroin involved. Appellant's father spoke to appellant for approximately fifteen minutes and then indicated to the officers that appellant wished to make a statement. Appellant was informed of his Miranda*fn2 rights, waived them in the presence of his father, and then made the statement he later sought to have suppressed.
A defendant's waiver of his rights under Miranda will not be presumed but must be explicit, see Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), and the Commonwealth bears the burden of proving that the waiver was intelligent, Commonwealth v. Smith, 472 Pa. 492, 502, 372 A.2d 797, 802 (1977); Commonwealth v. Boone, 467 Pa. 168,
[ 281 Pa. Super. Page 118354]
A.2d 898 (1975). When the defendant is a juvenile, the Commonwealth will have met its burden of proving an intelligent waiver "only when it has been shown that the minor comprehended the full significance of the panoply of rights that protects him during custodial interrogation." Commonwealth v. Smith, supra, 472 Pa. at 496, 372 A.2d at 799 (emphasis in original). Our Supreme Court has adopted a per se rule that a finding may not be made that the Commonwealth has shown that the juvenile comprehended his rights unless the Commonwealth proves that before making his statement, the juvenile was given an opportunity to consult with an interested and informed adult concerning his rights.*fn2a See, e. g., Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978); Commonwealth v. Walker, 477 Pa. 370, 383 A.2d 1253 (1978); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). This per se rule requires that the following procedure be followed after the arrest of a juvenile. First, the police must secure the presence of an interested adult. Second, they must inform this interested adult of the juvenile's situation and of the juvenile's constitutional rights. Third, they must permit the juvenile to consult with the adult concerning these rights. It is only after this procedure has been followed that the Commonwealth may obtain an intelligent waiver of rights by the juvenile.
In the present case appellant argues that the Commonwealth failed to comply with the per se rule because his father was neither an interested nor an informed adult.
[ 281 Pa. Super. Page 119]
In arguing that his father failed to qualify as an interested adult, appellant points to the facts that his father was a police officer and a friend of one of the investigating officers as evidence that his father's interest was not so much to ensure that appellant understood his rights as to advance the police investigation. In support of this argument appellant cites Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d ...