No. 91 March Term, 1979 Appeal from the Order of the Court of Common Pleas of Fulton County, at No. 90 of 1978.
Gary D. Wilt, District Attorney, McConnellsburg, for Commonwealth, appellant.
James M. Schall, McConnellsburg, for appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ.
[ 283 Pa. Super. Page 214]
This is an appeal by the Commonwealth from the order of the Court of Common Pleas of Fulton County in a juvenile matter. The court below suppressed certain incriminating statements given to police by the defendant and also suppressed certain evidence allegedly obtained as a result of the aforesaid incriminating statements. The Commonwealth has certified that without this evidence it is unable to proceed to trial. Defendant claims otherwise.
On October 3, 1978, the residences of Craig Bell and Ellis C. Wilkinson were burglarized and items removed therefrom. The incidents were reported to the Pennsylvania State Police and Trooper Martin Marcus was assigned to the case. Marcus proceeded to interview a service station attendant at Warfordsburg, Pennsylvania who told him that some of the stolen items were in the possession of the defendant and that the defendant had attempted to sell some of the items from the trunk of his car at the service station. A Donald Mellott told the officer that the defendant had sold him a blanket from his car at the service station and gave the blanket to the officer. The blanket was one of the stolen items.
On October 5, 1978, Marcus stopped a vehicle being operated by one Frank Mills, the officer having been told that the defendant was with Mills. At first the person riding with Mills lied to Marcus claiming that he was "Ralph Bishop". Upon further questioning the person admitted that he was "Roger Ritchey", the defendant. Marcus then transported the defendant's to Marvania Orchards in Hancock, Maryland, where defendant's mother worked as the officer had determined that the defendant was seventeen years of age at the time, and therefore, was a juvenile. At Mirvania Orchards, Marcus "explained the situation to defendant's mother including the information he had received from Donald Mellott". The defendant then admitted his participation in the crimes to his mother in the officer's presence. Defendant's mother then told Marcus that she wanted to return to work and she began walking away.
[ 283 Pa. Super. Page 215]
Marcus then read the defendant his Miranda rights when the mother was six feet away and within hearing distance. He also advised both defendant and his mother that he would file a juvenile petition against the defendant charging him with the offenses.
After advising the defendant of his Miranda rights the officer and the defendant went to an adjoining room where defendant fully informed the officer of his participation in the crimes and told the officer of the location and model of his vehicle and of the fact that the stolen property was located in its trunk. During the interview, Marcus failed to inform the defendant or his mother that she could be present during any conversation the officer had with the defendant and could consult with the defendant and give him advice during the conversation. The officer did state, during the suppression hearing, that he believed that defendant's mother understood that she could be present during the interview.
Later Marcus and the defendant went to defendant's car, parked at the aforesaid service station, and Marcus asked defendant to open the trunk, stating that if defendant refused he could obtain a search warrant authorizing same. Defendant opened the trunk revealing the stolen property.
The court below suppressed both defendant's confession and the recovered property found in defendant's vehicle holding that the recovery of the stolen items was occasioned as a result of the statements made by defendant to the officer and was therefore "fruit ...