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filed: January 30, 1981.


No. 899 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Subquehanna County at Nos. 1775, 1778 and 1783 Juvenile File


Charles J. Aliano, Montrose, Susquehanna, for appellant.

Raymond C. Davis, Montrose, Susquehanna, for appellee.

Brosky, Wickersham and Roberts, JJ.*fn* Wickersham, J., files dissenting opinion.

Author: Brosky

[ 284 Pa. Super. Page 38]

Appellant, William Christopher Curry, age 15, was found delinquent by the trial court following a determination that he had committed two burglaries in December of 1978. Testimony came from several victims of the burglaries, however, no person made reference to or identified the appellant. State police officers testified about conversations they had with Curry which connected him with the offenses. The interview conducted by the police was held without the parents of appellant or other person in a guardianship relationship or attorney or any other person to guide or assist Curry during questioning. Appellant argues he was denied his constitutional right against self-incrimination and

[ 284 Pa. Super. Page 39]

    his right to receive assistance of counsel. U.S.C.A.Const. 5th and 6th Am.

We reverse and discharge the defendant.

The waiver of Miranda rights has been discussed in 49 Temple Law quarterly (1975) at page 704:

[ 284 Pa. Super. Page 705]

One of the most controversial and perplexing questions generated by the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), concerns the capacity of a juvenile defendant, without assistance, to knowingly and intelligently waive his fifth amendment privilege against self incrimination. . . . Page 705. Recent psychological studies compel the conclusion, however, that juveniles cannot fully appreciate or effectively assert their constitutional protections. These studies suggest that children possess an "irrational" obedience to authority; when confronted with the "overpowering" presence of the law, "the passive and inexperienced minor is more likely to comply with the requests of the authority, rather than display an uncooperative attitude by refusing to speak. It is suggested, therefore, that in order to assure a constitutional valid waiver, the juvenile should be permitted to consult with a mature and experienced parent or other friendly adult before making this critical decision."

In 1975, the Pennsylvania Supreme Court was called upon to determine whether such friendly adult advice is required as a matter of law before a valid waiver can be effected. Expanding upon its holding one year earlier in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974), the court in a series of cases, Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1976); Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663 (1976); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975); Commonwealth v. Riggs, 465 Pa. 208, 348 A.2d 420 (1975); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); and most notably in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), clearly established such a per se rule.

[ 284 Pa. Super. Page 40]

The court had not expressly ruled on Miranda's applicability to juvenile defendants in Pennsylvania until 1970. Then, in Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970), it acknowledged that Miranda applied and adopted the "totality of the circumstances" test to determine the validity of the juvenile's fifth amendment waiver. One year later in Commonwealth v. Moses [ Moses ], 446 Pa. 350, 287 A.2d 131 (1971), the court reaffirmed Darden, specifically rejecting the argument that a juvenile lacks the ability to assert his rights without the advice of a more mature person. Despite repeated and vigorous dissents (by two of the Justices), the court's reliance on the totality test continued unabated until its 1974 decision in Commonwealth v. Roane, 459 Pa. 389, 394, 329 A.2d 286, 288 (1974).

The court in Commonwealth v. Roane, supra, applied the reasoning found in the United States Supreme Court's decision, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967):

An important factor in establishing that a juvenile's waiver of his constitutional rights was a knowing and intelligent one would be evidence that, before he made his decision to waive those rights, he had access to the advice of a parent, attorney, or other adult who was primarily interested in his welfare.

Id., 459 Pa. at 394, 329 A.2d at 288; Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). Because Roane had been denied the kind of "helpful advice" discussed in Gallegos, the court concluded that the Commonwealth had failed to establish that his waiver was knowing and intelligent.

During this questioning, William Christopher Curry gave a statement incriminating himself in the activity for which he was found to be delinquent.

At trial, the court heard testimony of the Pennsylvania State Police Officers who had interrogated Curry. Immediately following that testimony, counsel for appellant moved the court to strike it because neither the boy's mother nor a

[ 284 Pa. Super. Page 41]

    representative of Child Welfare was not present. The law is clear that statements made by juveniles under these circumstances are not admissible. Such statements are in violation of their constitutional rights, Commonwealth v. Roane, supra.

The rationale for making the presence of an interested adult a prerequisite to an effective waiver of a juvenile's constitutional rights was set forth in Commonwealth v. Smith, 472 Pa. 492, 498-499, 372 ...

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