No. 80-1-15 Appeal from the Judgment of Sentence of December 12, 1979, before the Honorable Richard E. McCormick at No. 21, 21a July Term, 1973 and No. 235, 235a April Term 1973, in the Court of Common Pleas of Westmoreland County Pennsylvania
Alfred B. Bell, Asst. Public Defender, Greensburg, for appellant.
James J. Conte, Albert C. Gaudio, Asst. Dist. Attys., Greensburg, for appellee.
Larsen, J., filed an opinion in support of affirmance in which Flaherty and Kauffman, JJ., joins. Roberts, J., filed an opinion in support of reversal joined by O'Brien, C. J. Nix, J., filed an opinion in support of reversal.
The Court being equally divided, the order is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
On September 17, 1973, appellant John Veltre entered pleas of guilty to four indictments charging two counts of murder, rape, and assault with intent to kill. He was sentenced to two concurrent terms of life imprisonment on the indictments charging murder, a consecutive term of imprisonment of 5 to 20 years on the indictment charging rape, and received a suspended sentence on the indictment charging assault with intent to kill. Subsequently, on April 24, 1974, appellant filed a petition under the Post Conviction Hearing Act alleging that his guilty pleas were not knowingly, intelligently, and voluntarily entered. Following a hearing on the petition, a new trial was ordered. The Commonwealth appealed that order, and this Court affirmed.*fn1
Appellant then proceeded to trial before a jury and was found guilty of two counts of murder of the first degree, rape, and assault with intent to kill. The same sentence set forth above was imposed, and appellant brought this appeal.
The sole issue presented by appellant is whether the courts below erred in not suppressing inculpatory statements he made to the police following his arrest. The events which lead up to those statements are as follows:
During the evening hours of February 14, 1973, appellant, who was sixteen years and eleven months of age, consumed three to four cans of beer and then went to the Manor Park Apartments in Monessen, Pennsylvania. He entered the apartment of Alys Morgan and forced her to have sexual intercourse with him by striking and choking her. Because Mrs. Morgan continued to scream after appellant had completed his sexual attack, appellant threw her against a wall, struck her in the head, "stomped" on her several times, and left her on the floor believing she was dead. Fearing that his victim's two-year-old daughter might identify him, he went into the child's bedroom, picked her up, threw her
against a wall, and then "stomped" on her as well. Finally, appellant went into the bedroom of Mrs. Morgan's twomonth-old daughter and threw her against a wall. He then heard a knock on the apartment door and climbed out the back window. The blows suffered by the children proved fatal but, miraculously, Mrs. Morgan survived.
Appellant fled to his own apartment, which was located in the same complex. He locked and barricaded the apartment door and told his mother not to open it if the police should come. Approximately one hour later, at 12:30 a. m. on February 15th, the police arrived. With the assistance of two other persons, appellant further fortified the front door, forcing the police to break one of the panels in an effort to gain admittance. Appellant then held the officers at bay by striking out at them with a large fork. One of the policemen sprayed mace in appellant's direction, entered the apartment, and three policemen subdued appellant and placed him in handcuffs. His mother was then advised that he was being taken to police headquarters and why. She indicated that she would come to the station later, as there was no extra room in the police vehicle.
Following their arrival at police headquarters, appellant calmed down and the handcuffs were removed. He was advised of his constitutional rights, after which, he indicated to the police that he did not wish to waive them without first seeing his probation officer, Claude Garry. The police telephoned Mr. Garry who had just received a telephone call from appellant's mother. Appellant's mother had informed Mr. Garry of what had happened, advised him that she was not going to police headquarters, and asked him to please go in her stead.
Mr. Garry, who had known appellant for approximately four years and counseled him and his mother on 25 to 30 occasions, arrived at approximately 1:40 a. m. and was taken to appellant. In Mr. Garry's presence, appellant was again advised of his constitutional rights, with one officer reading from a card and another reiterating the warnings in very simplistic language. Appellant agreed to waive these rights,
and Mr. Garry asked appellant if he knew why he was under arrest. Appellant immediately began to relate the foregoing incidents. When he was done, appellant indicated that he had no remorse, and stated he would repeat his acts, as the victim's children are happier now because they were mistreated and the victim was "no good" and deserved to die.
In a series of decisions beginning with Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974), a majority of this Court*fn2 has held that no person under 18 years of age may effectively waive his constitutional rights without: 1) an opportunity to consult with an adult, 2) who was interested in the welfare of the juvenile, and 3) who was aware of the rights of the accused. Appellant argues that Mr. Garry, his probation officer, was not the "interested adult" required by these decisions, and that the court below, therefore, erred in not suppressing his statements. The Commonwealth, on the other hand, asserts the court below correctly found that appellant's waiver of constitutional rights was knowing, intelligent, and voluntary, and that appellant's incriminating statements were not illegally obtained. While appellant's characterization of Mr. Garry may be correct,*fn3 I agree with the Commonwealth.
The rationale for this Court's per se rule regarding juvenile confessions was enunciated in Commonwealth v. Smith, ...