No. 803 Philadelphia, 1980, Appeal from the Orders of the Court of Common Pleas of Delaware County, Criminal, at Nos. 676,678,679 & 1231, 1980.
Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellant.
Joseph J. DelSordo, Media, for appellee.
Price, Watkins and Montgomery, JJ. Price, J., files a concurring and dissenting statement.
[ 291 Pa. Super. Page 274]
This is an appeal from the orders of the Court of Common Pleas of Delaware County, Criminal Division, involving a Commonwealth appeal from an order which found the defendant's arrest to be illegal. The court also held that the search of defendant and his confession were so connected to his illegal arrest so as to be tainted by the arrest. The court further held defendant's confession to be inadmissible because, as a juvenile, he had not had the opportunity to confer with his mother prior to confessing.
The defendant was arrested on January 11, 1980, a few weeks before his 18th birthday. (His date of birth is February 2, 1962). The arrest was made by Pasquale Mignogna, of the Upper Chichester Township Police Department at 12:30 P.M. at the Baltimore & Ohio railroad track overpass at Route 452 in Upper Chichester Township. The arrest was for a burglary which had occurred in the township between 11:00 A.M. and 11:40 A.M. Two other juveniles were also arrested.
After his arrest the defendant was brought to the Aston Township Police Department (Delaware County) for questioning relative to another burglary committed several days prior to January 11, 1980.
As the Aston Township Police station Officer David D'Angelo attempted to contact the defendant's mother for almost an hour. When he reached her she informed him that her older son, Edward, had legal custody over the defendant, and that Edward would be there. When Edward arrived at the station, he and the defendant were left in the room alone to talk. When they returned the defendant signed a waiver and gave two statements to the police, one oral and one written. The statement concerned the Aston Township burglary and took ten minutes to complete. Criminal Complaints relative to the burglaries were subsequently filed
[ 291 Pa. Super. Page 275]
against the defendant and the cases transferred to Adult Court. The defendant then filed various pre-trial motions and on March 11, 1980, the court ordered defendant's confessions, his fingerprints taken at the Aston Township police station, and the evidence obtained at the time of his arrest suppressed. The Commonwealth took this appeal.
An opportunity to consult with an interested adult is a prerequisite to an effective waiver of a constitutional right by a juvenile. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). The court below held that the defendant's 21 year old brother was not in "interested adult" as that term is applied to the prerequisite of juvenile confessions. We do not agree. In the instant case the defendant was several weeks shy of being an adult (age 18), the police contacted his mother (after considerable effort) only to be informed by her that her other son was the defendant's legal guardian, defendant's brother was an adult, and the defendant was permitted to consult with his brother and his brother's wife prior to his confession. Under this set of circumstances we cannot hold that the police violated defendant's right to consult with an "interested adult" prior to waiving his right to remain silent. In fact it appears that defendant's brother was certainly more "interested" in defendant's welfare than was his mother since the brother at least took the time to go to the police station and consult with the defendant while his mother would not. A juvenile must be afforded the opportunity to confer with "an attorney, parent, or other interested adult " prior to effecting a valid waiver of his constitutional right to remain silent. Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 ...