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filed: October 1, 1982.


No. 1009 Philadelphia, 1981, No. 1128 Philadelphia, 1981, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County at Nos. 614 of 1980 and 622 of 1980.


Robert F. Pappano, Assistant Public Defender, Media, for appellants.

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

Wickersham, Beck and Popovich, JJ.

Author: Popovich

[ 305 Pa. Super. Page 367]

This is a consolidated appeal involving two juveniles, Ronald Walston and Lloyd Rochester, each found guilty after a jury trial of involuntary manslaughter, robbery, and conspiracy. We affirm.

The facts surrounding the instant appeal, as summarized by the court below are as follows:

On December 26, 1979, the victim, John McGinn, was robbed in the City of Chester, Pennsylvania. As a result of the incident, the victim suffered a heart attack and was

[ 305 Pa. Super. Page 368]

    taken to a nearby hospital where he died on January 19, 1980.

When the police were investigating the incident, they received a statement from Gary Williams, who implicated one of the appellants, Lloyd Rochester, in the robbery. The court issued an order authorizing the police to take Rochester into custody in order to have fingerprints and photographs taken. During the time that Rochester was at the police station waiting for his parents to arrive, another youth, William Walston, brother of appellant Ronald, implicated Lloyd Rochester in the robbery. Before the police questioned Rochester, he was given Miranda warnings in the presence of his mother. After Rochester examined the statement made by William Walston, Rochester agreed to make a statement.

The other appellant, Ronald Walston, also was implicated in the robbery. However, Walston, at the time, was in the state of Maryland where he had been arrested. Walston waived extradition, and, as a result, he was remanded to the custody of the Delaware County Sheriff in Pennsylvania. When Walston arrived at the police station, his mother was summoned, and the police read Walston's Miranda warnings in the presence of his mother. Questioning by the police began, and Walston then proceeded to implicate two other individuals at which time the interrogating officer informed Walston that he had more than enough evidence to prosecute him.

Subsequently, Ronald Walston's mother advised him to speak the truth. At this time, Ronald Walston gave an inculpatory statement. A redacted version of the statement was introduced by the police officer at the trial and also was used for impeachment purposes at trial after he testified on his own behalf. Rochester's statement was not introduced into evidence by the prosecution at the trial, although the prosecution alluded to the statement in cross-examining him.

Initially, the court suppressed the statements made by both appellants on the grounds that the police failed to advise the juveniles and the interested adults after advising

[ 305 Pa. Super. Page 369]

    them of their Miranda rights that they can consult with each other in private before any interrogation can proceed. The prosecution subsequently filed a petition for reconsideration in light of the remand ordered by the United States Supreme Court to our Supreme Court in Commonwealth of Pennsylvania v. Henderson, 446 U.S. 905, 100 S.Ct. 1829, 64 L.Ed.2d 256 (1980) for further consideration in light of a decision stating that a totality of the circumstances approach is adequate to determine whether a juvenile has waived his Miranda rights under federal law. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). A hearing was held, and the court below reversed its position. This appeal followed.

Objections were made at trial and post-trial and the issue is, therefore, preserved for review. The first issue presented in this appeal is whether the prosecution met its burden of proving by a preponderance of the evidence that appellants knowingly, voluntarily, and intelligently waived their Miranda rights. See Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977). Because appellants were both juveniles at the time of their arrests, the prosecution in establishing its burden had to prove that the appellants had access to the advice of an attorney, parent, or other interested adult in addition to proving that the consulted adult was informed as to the constitutional rights available to the minor and as to the consequences attendant to the election made. See Commonwealth v. Schroth, 495 Pa. 561, 435 A.2d 148 (1981). Appellants suggest that the suppression court erred when it concluded that the statements were admissible. Hence, on appeal our duty is to examine the record of the suppression court and "determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977) (quoting Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975)). The scope of the rule governing a juvenile defendant's waiver of

[ 305 Pa. Super. Page 370]

    his Miranda rights in Pennsylvania, as the McCutchen*fn1 or "interested adult" rule, is the crux of the issue before this Court today. Appellants contend that the police should have informed the juveniles that they have an opportunity to consult in private before any interrogation may proceed. We cannot agree with appellants.

The reasoning behind the McCutchen rule is 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. It was therefore reasoned that the impediment of immaturity can only be overcome where the record establishes that the youth had access to the advice of an attorney, parent, or other interested adult and that the consulted adult was informed as to the constitutional rights available to the minor and aware of the consequences that might follow the election to be made." Commonwealth v. Smith, 472 Pa. at 498, 372 A.2d at 800.*fn2

In examining whether the dictates of Commonwealth v. McCutchen, supra, have been followed, our courts have articulated three factors: "(1) the juvenile must be given the opportunity to consult with an adult;*fn3 (2) the adult

[ 305 Pa. Super. Page 371]

    must be one who is genuinely interested in the welfare of the accused juvenile;*fn4 and (3) the interested adult must be informed and aware of those Fifth and Sixth Amendment rights guaranteed to the juvenile."*fn5 Commonwealth v. Barnes, 482 Pa. at 560, 394 A.2d at 464 (citations added).

[ 305 Pa. Super. Page 372]

Although certain language appearing in a prior opinion of our Supreme Court*fn6 would seem to indicate that a fourth requirement has been engrafted onto the McCutchen rule, the statement was dictum and hence is not binding upon us. See Hunsberger v. Bender, 407 Pa. 185, 180 A.2d 4 (1962). In Commonwealth v. Barnes, supra, appellant, a juvenile, was transported to the police station and later questioned without first being given his Miranda rights. Appellant indicated a desire to waive his rights and also stated that he did not want his father to be present at that time. Our Supreme Court applied the three factors enunciated above (i.e., opportunity to consult, interested adult, and an informed adult) and concluded that "the Commonwealth did not satisfy these prerequisites." Id., 482 Pa. at 560, 394 A.2d at 464. Additionally, that Court stated:

[ 305 Pa. Super. Page 373]

"Shortly after appellant's arrival at the PAB, the police knew where appellant resided, and that he lived with his father. In spite of this knowledge, the record shows no effort by police to contact appellant's father before interrogating appellant about the homicide. In fact the only evidence leads to the conclusion that appellant's father was only notified of his son's status shortly before the arraignment, some five or six hours after appellant made his inculpatory statement. The only adults 'consulted' by appellant prior to arraignment were police officers. The Commonwealth argues that appellant voluntarily waived his right to consult with an interested and informed adult. To accept this argument would render meaningless the protection afforded to juveniles by McCutchen. The essence of our doctrine relating to juvenile waiver is that the benefit of consultation with counsel or an interested, concerned and knowledgeable adult prior to a decision to waive Fifth and Sixth Amendment rights counterbalances the immaturity of the youthful accused. Commonwealth Page 373} v. Smith, supra. It is only after a meaningful consultation has taken place that it can be found that the disadvantage occasioned by the juvenile's immaturity has been offset to some degree. Since the ultimate decision, even after the consultation, must be made by the juvenile, his immaturity can not be completely removed from the equation. At best we can hope by this process to impress upon him the seriousness of the decision and to apprise him of his options and the consequences that might follow the path he elects. The Commonwealth lays great stress on the fact that appellant expressed a desire not to speak with his father. This is the type of decision that reflects the immaturity that the doctrine is designed to guard against. Obviously the appellant was more concerned with parental disapproval and failed to perceive the more important need at that moment for consulting with one who was concerned with his welfare. It is only after a meaningful consultation that we can be satisfied that the juvenile possesses an informed judgment capable of making such a grave decision. We therefore decline to adopt the argument urged by the Commonwealth."

Id., 482 Pa. at 560, 394 A.2d at 464 (footnote omitted) (Emphasis added); See also Commonwealth v. Smith, 472 Pa. at 502, 372 A.2d at 803 (Concurring Opinion by Manderino, J.) ("I would like to add, however, that in addition to the three pre-requisites discussed by the majority opinion, the prosecution must show that meaningful consultation between the juvenile and the interested and informed adult actually took place.")

Thus, our Supreme Court's decision in Barnes was reached after applying the traditional three step analysis.*fn7

[ 305 Pa. Super. Page 374]

When those criteria are applied to the record before us, we are satisfied that appellant voluntarily, understandingly, and intelligently waived his Miranda rights.

Although appellants were arrested at different times, the record shows that no questioning commenced until each appellant had been informed of his Miranda rights. Additionally, interested adults were present at the time the police had informed them of their rights. The police officers after each question asked both the appellants and their parents whether they understood the warnings, and there was no indication that they did not. The record indicates that the appellants' confessions were prompted by statements given by other actors implicating both appellants.

Appellants contend that the statements they gave were not voluntarily, understandingly, and intelligently given because the police failed to inform them and their parents before questioning that they had the right to confer out of the presence of the police officers. Because a private consultation was not afforded in this case, appellants argue that their statements must be suppressed as matter of law. Requiring the prosecution to prove additionally that the appellant and the interested adult met in private (i.e., out of the presence of the police officers) creates an irrebuttable presumption that the adult's presence at the hearing was insufficient to offset the "overbearing presence of the law" during the interrogation. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948). Although our Supreme Court in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) stated in a similar case that the interested adult's "mere presence [was] not enough", id., 459 Pa. at 395, 329 A.2d at 289, that case is distinguishable. In Roane, the police ignored the defendant's mother's request to seek the advice of counsel. That Court stated the following:

"Since the record indicates that the Commonwealth first attempted to exclude appellant's mother from the interrogation

[ 305 Pa. Super. Page 375]

    and then, when she finally gained access, did not afford her an opportunity to advise her son privately about his constitutional rights, although she indicated that she wished him to be afforded the right of counsel, we hold that the Commonwealth failed to establish that appellant's waiver of his rights was a knowing and intelligent one. Accordingly, his confession should have been suppressed." Id.

Thus, because the parent did not join in the waiver, our Supreme Court concluded that the defendant was denied the opportunity to consult. In the instant case the parent advised the juvenile to speak the truth and did not request the advice of counsel. Under these circumstances, we are satisfied that the prosecution met its burden in establishing that appellants entered into a voluntary, understanding, and intelligent waiver of their Miranda rights since the record indicates that a parent was present during each interrogation. See Commonwealth v. Starkes, 461 Pa. 178, 189, 335 A.2d 698, 703 (1975) (plurality opinion) ("where an informed adult is present the inequality of the position of the accused and police is to some extent neutralized and due process satisfied.").

In any event, with respect to appellant Rochester, the record reveals that appellant testified substantially in accord with his statement; therefore, appellant's allegation of error may have been harmless under the circumstances. See Commonwealth v. Rice, 271 Pa. Super. 425, 413 A.2d 739 (1979).

With respect to the other issues raised, with one exception, those issues are similar. Appellant, Ronald Walston, argues separately that his statement should be suppressed "because it was a product of coercion arising out of the totality of the circumstances." Brief for Appellant at 9. Appellant bases his argument on the following alleged psychologically and physically coercive police tactics:

"The appellant had not eaten since breakfast. He testified that he was scared. It is argued that Commodore Harris was both overbearing and overreaching; also, that

[ 305 Pa. Super. Page 376]

    he threatened the appellant. It is also argued that Harris was in a hurry and did not adequately explain either the charges against the appellant or the Miranda warnings to either him or his mother." Id.

Appellant's contention concerns the voluntariness of his statement which he gave to the police which must be examined in accordance with the following guidelines:

"The test of voluntariness is whether the confession was the product of an essentially free and unconstrained choice by its maker. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057 (1961). In determining the voluntariness of a statement, the totality of the circumstances must be considered. Commonwealth v. Starkes, 461 Pa. 178, 184, 335 A.2d 698, 701 (1975). More specifically, there must be considered the age of the accused; his education level; his inteeligence; his physical state; the duration and method of interrogation; the conditions of detention; the advice given to him concerning his constitutional rights; and any other circumstances pertinent to the inquiry." Commonwealth v. Eackles, 286 Pa. Super. 146 at 151, 428 A.2d 614 at 617.

Applying these standards, the record reveals that appellant Walston was 15 years of age at the time of his arrest. Additionally, at the time that an arrest warrant was filed against him in Pennsylvania, he was at a juvenile facility for delinquents because of theft and robbery charges brought against him in Salisbury, Maryland. After appellant waived extradition, he arrived at the police station in Delaware County, ...

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