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decided: November 5, 1981.


No. 80-3-699, Appeal from the Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division, Nos. 1494(2) C of 1975 and 1494(2A) C of 1975, following the granting of a Petition for Writ of Certiorari by the Supreme Court of the United States at No. 79-1312, which vacated the judgment of the Superior Court of Pennsylvania, Philadelphia District, No. 22, Special Transfer Docket, granting appellant a new trial, and remanded the record for further consideration.


John R. Merrick, Public Defender, Charles M. J. Nester, Asst. Public Defender, for appellant.

James R. Freeman, Dist. Atty., Lee Ruslander, Asst. Dist. Atty., for appellee.

Kenneth S. Gallant, Asst. Dist. Atty., for amicus curiae.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Larsen, J., files a dissenting opinion in which Flaherty and Kauffman, JJ., join. Kauffman, J., files a dissenting opinion in which Larsen and Flaherty, JJ., join.

Author: Roberts

[ 496 Pa. Page 351]


On June 5, 1979, our Superior Court entered an order setting aside the conviction of appellant Arnold Henderson, a juvenile, and remanding for a new trial because of the prosecution's use at trial of a statement obtained from appellant in violation of this Commonwealth's "interested adult" rule. 266 Pa. Super. 519, 405 A.2d 940. This Court denied the Commonwealth's petition for allowance of appeal. However, on April 21, 1980, over the dissent of Justices Brennan and Stevens, the Supreme Court of the United States granted the Commonwealth's petition for a writ of certiorari, vacated the Superior Court's determination, and remanded the matter to the Superior Court "for further consideration in light of Fare v. Michael C., 442 U.S. 707 [99 S.Ct. 2560, 61 L.Ed.2d 197] (1979)." 446 U.S. 905, 100 S.Ct. 1829, 64 L.Ed.2d 256. The Superior Court has transferred the matter to this Court. Hence this opinion.

We conclude that, because Fare v. Michael C. addresses only the rights of the accused under the federal Constitution, it has no effect upon the Superior Court's application of our interested-adult rule, which is founded upon state law. Thus, the order of the Superior Court granting appellant a new trial is reinstated.


Our interested-adult rule is premised on this Court's belief that "the administering of Miranda warnings to a juvenile, without providing an opportunity to that juvenile to consult with a mature, informed individual concerned primarily with the interest of the juvenile, [is] inadequate to offset the disadvantage occasioned by his youth." Commonwealth v. Smith, 472 Pa. 492, 498, 372 A.2d 797, 800 (1977). Thus police seeking to subject a juvenile suspect to custodial interrogation are required first to provide the juvenile with

[ 496 Pa. Page 352]

    the opportunity to consult with an adult interested in the juvenile's welfare. This rule

"appreciates that the inexperience of the minor affects not only his or her ability to understand the full implication and consequences of the predicament but also renders the judgment inadequate to assess the spectrum of considerations encompassed in the waiver decision."

Commonwealth v. Smith, supra.

Although named after Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975), the interested-adult rule was applied in earlier cases. Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). On numerous occasions this Court has reaffirmed the validity of the rule by granting relief for its violation.*fn1 The Superior Court has similarly granted relief,*fn2 as have the courts of common pleas throughout the Commonwealth.

A number of other jurisdictions also recognize the need to provide special protections to juveniles subjected to custodial

[ 496 Pa. Page 353]

    interrogation.*fn3 Our rule is also supported by respected scholarship, which recognizes that "[j]uveniles should not be permitted to waive constitutional rights on their own." Institute of Judicial Administration -- American Bar Association Juvenile Justice Standards, Police Handling of Juvenile Problems § 3.2 (1980). See also, e. g., Council of Judges of the National Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 25 (1969).


The Commonwealth argues that the Supreme Court's mandate vacating the determination of the Superior Court poses an opportunity to consider the wisdom of our interested-adult rule afresh, and to adopt the test applied by the Supreme Court in Fare v. Michael C. Fare set aside a determination of the Supreme Court of California which had held, as a matter of federal constitutional law, that a statement of a juvenile should have been suppressed on the ground that the juvenile's request to see his probation officer constituted an invocation of his Miranda rights. In setting aside the determination, the Supreme Court enforced no federal rights of the State. Rather, the Court held only that the state court had erroneously imposed greater restrictions on police conduct than are required by the federal Constitution.

The Supreme Court of the United States has expressly stated:

[ 496 Pa. Page 354]

"Our only power over state judgments is to correct them to the extent they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion."

Herb v. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 463, 89 L.Ed. 789 (1945).

Thus the determination of the Supreme Court of the United States interpreting the federal Constitution does not and could not disturb the force of our interested-adult rule, a matter of Pennsylvania law. See Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971), cert. granted sub nom. Pennsylvania v. Ware, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453, subsequently vacated and denied, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972) ("it appearing that the judgment below rests upon an adequate state ground"). As this Court recently observed,

[ 496 Pa. Page 355]

"[I]t is well settled that a state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution, and that the rights so guaranteed may be more expansive than their federal counterparts. Prune-Yard Shopping Center v. Robins, 447 U.S. 74, 80-82, 100 S.Ct. 2035, 2040-41, 64 L.Ed.2d 741 (1980); see Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). * * * See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 503 (1977). This Court has on numerous occasions recognized the Pennsylvania Constitution to be an alternative and independent source of individual rights. See, e. g., Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Knowles, 459 Pa. 70, 73 n. 3, 327 A.2d 19, 20 n.3 (1974); Commonwealth Page 355} v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961)."

Commonwealth v. Tate, 495 Pa. 158, 169, 432 A.2d 1382, 1387-88 (1981). Although cases applying the McCutchen rule do not expressly articulate the source of the rule, it is clear from numerous decisions which, like McCutchen, address issues arising out of the custodial interrogation setting that the McCutchen rule is a matter of state law.

The decision of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), extended the federal fifth amendment privilege against self-incrimination to the setting of custodial interrogation, and applied the extension to the States by way of the fourteenth amendment. As early as 1969, three years after Miranda, this Court began to harmonize Miranda's interpretation of the federal privilege with this Court's interpretation of the Pennsylvania Constitution's prohibition against the compelling of an accused "to give evidence against himself." Pa.Const. art. I, § 9. In Commonwealth v. Bruno, 435 Pa. 200, 255 A.2d 519 (1969), this Court observed:

" Miranda v. Arizona, extended the right against self-incrimination and the right to the assistance of counsel, from the formal 'criminal proceeding,' i. e., the trial, to police interrogation. For similar reasons, we long ago indicated that the right against self-incrimination protects a person from being compelled to answer any question propounded to him by those making a mental examination 'for the purpose of testifying in regard thereto' at a criminal trial. Commonwealth v. Musto, 348 Pa. 300, 306, 35 A.2d 307, 311 (1944). Both Miranda and Musto simply recognize that the guilt determining process does not begin at trial."

Commonwealth v. Bruno, 435 Pa. at 207, 255 A.2d at 523.

Two years later, in Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971), this Court addressed the appropriate

[ 496 Pa. Page 356]

    date on which to commence the application of Miranda. The Commonwealth contended that the rules of Miranda should be applied only to police conduct occurring after the date of the Miranda decision. Concluding that under the decision of the Supreme Court of the United States in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), "the matter is no longer an open question," this Court rejected the Commonwealth's contention and held that "the Miranda standards must be applied to all post- Miranda trials. . . ." 446 Pa. at 55, 284 A.2d at 702. The determination in Ware did not rest exclusively upon the decision of the Supreme Court in Johnson. Rather, this Court expressly added that "we adopt the Johnson position as a matter of state law." 446 Pa. at 56, 284 A.2d at 702. Because this Court could have reached the result in Ware by choosing to hold only that the matter was controlled by Johnson, Ware's reliance upon state law is significant. Indeed, the Supreme Court initially granted the Commonwealth's petition for a writ of certiorari, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453, but then vacated its order, "it appearing that the judgment below rests upon an adequate state ground." 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972).

Subsequent case law demonstrates that Ware's deliberate reliance upon state law was a recognition that the principles embodied in Miranda are salutary and deserving of application as a matter not only of federal but also of state law. Following Ware, in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), this Court considered the propriety of a prosecutor's use of an unconstitutionally obtained statement for impeachment purposes. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court of the United States held that a statement obtained in violation of Miranda could be used for impeachment purposes, provided that the statement was trustworthy. This Court rejected Harris and concluded that "any statement of a defendant declared inadmissible for any reason by a suppression court cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf at

[ 496 Pa. Page 357]

    trial." 462 Pa. at 248-49, 341 A.2d at 64. In harmony with the approach taken in Ware, this Court added: "[o]ur prohibition against the use of constitutionally infirm statements to impeach the credibility of a criminal defendant testifying in his own behalf is premised upon Pennsylvania Constitution Article I, Section 9 . . . ." 462 Pa. at 249, 341 A.2d at 64.*fn4

Since Ware and Triplett, our cases have confirmed, in unanimous decisions, that this Court's approach to custodial interrogation claims is not controlled exclusively by decisions of the Supreme Court of the United States. In Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977), as in Ware and Triplett, this Court reaffirmed the independent force of Pennsylvania law in determining the scope of rights to which a suspect subjected to custodial interrogation is entitled:

" Miranda v. Arizona, [supra,] and the decisions of this Court, see e. g., Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26 (1976); Commonwealth v. Romberger, 464 Pa. 488, 347 A.2d 460 (1975), require that, before an individual is subjected to custodial interrogation, he must make a knowing and intelligent waiver of his privilege against self-incrimination and right to counsel, U.S.Const.Amend. V, VI, XIV; Pa.Const. Art. I, § 9, after adequate warning as to these rights."

[ 496 Pa. Page 358473]

Pa. at 569, 375 A.2d at 1264. Most recently, in Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980), this Court confirmed the independence of this Court's test for "custody." Rejecting the Commonwealth's contention that this Court should follow the then-recent case of the Supreme Court, Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), this Court observed:

"[T]he Commonwealth's exposition of what it views to be the guiding rule of law seriously understates the circumstances in which Miranda warnings must be given in Pennsylvania. The Commonwealth now, in supposed harmony with Beckwith, would have it that police must give warnings only if they interrogate one in actual custody or otherwise significantly deprived of freedom. But this jurisdiction's test of 'custodial interrogation' examines more than actual deprivation of freedom. * * * As this Court unanimously stated in Brown, supra,

'the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted.'"

488 Pa. at 306-307, 412 A.2d at 521.

Thus, beginning most notably with Commonwealth v. Ware, supra, our cases make clear that the core concepts originally articulated in Miranda v. Arizona not only have been followed pursuant to our obligation as a part of the federal system, but also have been recognized as separately compelled by the law of Pennsylvania. As a consequence, this Court has independently evaluated the proper approach to be followed to assure that this Commonwealth's privilege against self-incrimination is properly applied to custodial interrogation.

The rule of McCutchen is an additional instance in which this Court has sought to give proper meaning and independent force to this Commonwealth's privilege. Thus, whether the issue is the meaning of custody, Commonwealth v. Meyer, supra, the permissible use of an illegally-obtained statement, Commonwealth v. Triplett, supra, or the means

[ 496 Pa. Page 359]

    of best assuring an effective waiver of rights by a juvenile suspect, Commonwealth v. McCutchen, supra, this Court is considering this Commonwealth's privilege apart from the privilege contained in the federal Constitution and recognizing the privilege as "an alternative and independent source of individual rights." Commonwealth v. Tate, supra.

Accordingly, the order of the Superior Court is reinstated.

LARSEN, Justice.

I dissent.

The question presented by this case is simply whether appellant Arnold T. Henderson knowingly, voluntarily and intelligently waived his constitutional rights before giving a statement to the police implicating himself in a homicide. The majority, although obfuscating the question to some degree, eventually concludes that he did not so waive his rights. The basis for this conclusion is the majority's "interested adult" rule which irrebuttably presumes that no one under the magic age of 18 years can make a statement to the police without the assistance of the indispensable "interested adult." See, e. g., Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975) and Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977). This rule supposedly rests upon a concern for the inexperience of youth. Id.

I do not share the majority's appreciation of this rule and believe that justice for all concerned can only be achieved by a flexible rule which considers all of the surrounding circumstances, including the experience possessed by many youthful participants in crime and other factors which indicate that a lack of chronological age has not disadvantaged the defendant or caused his will to be overborne. See Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1980) (Opinion in Support of Affirmance), and Commonwealth v. Nelson, 488 Pa. 148,

[ 496 Pa. Page 360411]

A.2d 740 (1980) (Opinion in Support of Reversal). As was stated in Fare v. Michael C., 442 U.S. 707, 725-26, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212-13 (1970), (the case which the United States Supreme Court directed this Court to consider in deciding the instant issue):

This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits -- indeed, it mandates -- inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. (Citation omitted).

Courts repeatedly must deal with these issues of waiver with regard to a broad variety of constitutional rights. There is no reason to assume that such courts -- especially juvenile courts, with their special expertise in this area -- will be unable to apply the totality-of-the-circumstance analysis so as to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved . . . [The totality-of-the-circumstances] approach refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive prior record who knowingly and intelligently waives his Fifth Amendment rights and voluntarily consents to interrogation.

I am in full agreement with these statements and believe that the bright line drawn by the majority is unwise and unjust. Per se rules such as the "interested adult" rule discard the interests of justice in an attempt to establish a mechanical and arithmetic system of constitutional criminal procedure and, further, reflect a low opinion of trial courts'

[ 496 Pa. Page 361]

    abilities to dispense justice. The "interested adult" rule gives too little, if any, weight to the concerns and interests of society and assumes that the judges who actually hear the evidence -- rather than read it on a dry and lifeless record -- are not qualified and lack sufficient judgment and wisdom to give proper weight to the degree of a defendant's youth and inexperience. I cannot concur in these bald and unfounded assumptions, and would rely upon the trier of fact's perceptions and conclusions as to all relevant facts and circumstances, subject to accepted standards of appellate review, to determine when a defendant's waiver of rights and confession have been properly obtained and admitted into evidence.

In the instant case, there is ample basis for concluding that the appellant's inculpatory statements were properly introduced. Appellant was not a stranger to the legal system and, at the time of his arrest, was "absent" from a group home in which he had been placed by the juvenile court. He was treated very well while in custody, and he was advised of his constitutional rights twice before any questioning by the police and four times before giving a written statement. Furthermore, before appellant was asked one single question, his parents were called on the telephone and given an opportunity to be present and participate. When they declined, a policeman went in person to their home, where they signed a form indicating that they were fully aware of appellant's constitutional rights and again declined an opportunity to come to the police station.

Under these circumstances, there was absolutely no overreaching of appellant by the arresting officers, and the suppression court's conclusion that appellant knowingly, intelligently and voluntarily waived his constitutional rights is well supported by the record. Accordingly, the judgment of sentence should be affirmed.

[ 496 Pa. Page 362]

KAUFFMAN, Justice, dissenting.

I dissent from the majority opinion which imposes a rigid per se rule requiring consultation with an "interested adult" whenever a juvenile is interrogated by the police. The majority would exclude any incriminating statement made by an accused juvenile, regardless of the circumstances, where he has not consulted with an interested adult.

The federal Constitution clearly does not require this extreme result. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). Without any concern for the particular circumstances of this case, however, the majority concludes that its rule is mandated by the law of this Commonwealth, and reinstates the Superior Court order vacating appellant's convictions of first degree murder, robbery, burglary, theft, criminal conspiracy and unauthorized use of an automobile. (at pgs. 388, 389-390, 392).*fn1 While I agree that state and federal constitutional protections are not necessarily coextensive, and that states may provide safeguards beyond those prescribed in the federal Constitution, nothing in the law of this Commonwealth dictates the inflexible rule fashioned by the majority.

Although we have long recognized that the waiver of constitutional rights by an accused of tender years must be closely scrutinized, I believe that society would be far better served by a rule inquiring into the validity of each particular waiver in view of all of the circumstances. The majority's mechanical rule will result in blanket exclusion of trustworthy evidence vital to the truth determining process, not because the juvenile's will has been overborne or his understanding has been inadequate, but because the police did not follow a rigid procedure in obtaining his statement. A totality of the circumstances rule, on the other hand, not only would adequately protect the rights of the accused by disregarding any waiver of constitutional rights not knowingly, voluntarily, and intelligently made, but would also

[ 496 Pa. Page 363]

    protect the interests of society by precluding exclusion of relevant, trustworthy evidence simply because of a failure to comply with a rigid per se rule.

The flexible totality of the circumstances approach would provide sufficient safeguards in full compliance with the requirements of the federal Constitution. The law of this Commonwealth should not be interpreted to go further and mandate a strict per se rule, which in all too many cases would thwart the truth determining process and interfere with legitimate interests of law enforcement.

I would, therefore, affirm the judgment of sentence.

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