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COMMONWEALTH PENNSYLVANIA v. DALE BARRY (12/31/82)

decided: December 31, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DALE BARRY



No. 80-3-508, Appeal from the order of the Court of Common Pleas of Chester County, Pennsylvania, Criminal Division, at Nos. 30477 and 30577, entered January 3, 1980.

COUNSEL

Lee Ruslander, Chief, Appeals Div., West Chester, for appellant.

Carol E. Haltrecht, West Chester, for appellee.

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

Author: Roberts

[ 500 Pa. Page 111]

OPINION OF THE COURT

Following a trial by jury, appellee Dale Barry was found guilty of murder of the second degree, robbery, theft, and conspiracy in connection with the stabbing death of Oliver Jack Schugardt and the theft of Schugardt's car in Downingtown, Chester County, on February 5, 1977. At trial, over defense objection, the Commonwealth introduced into evidence an inculpatory statement that appellee had given to police following his arrest in Niskayuna, New York on February 8, 1977. On post-trial motions, the Court of Common Pleas of Chester County sitting en banc entered an order granting a new trial on the ground that the statement had been erroneously admitted.*fn1 Appellant, District Attorney's Office of Chester County, filed this direct appeal. We affirm.*fn2

Writing for the court en banc in support of its order granting a new trial, the trial judge determined that the

[ 500 Pa. Page 112]

    admission of the challenged statement at trial had been erroneous on two grounds. First, appellee, who was sixteen years of age at the time of his inculpatory statement, had not been provided an opportunity to consult with an adult interested in his welfare prior to waiving his Miranda rights, see Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975); second, the Commonwealth had not introduced evidence from which it could be concluded under the "totality of the circumstances" that appellee had understood and knowingly and voluntarily waived his Miranda rights. See Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

Appellant challenges both of these grounds as a basis for a new trial. Because appellee was arrested and questioned by New York police, who were not obliged under New York law to provide appellee with an opportunity to consult with an interested adult, appellant argues that the failure to provide such an opportunity should not bar admission of the statement. Appellant also argues that even if the lack of an opportunity to consult with an interested adult should have resulted in the statement's inadmissibility at trial, this Court should abolish the "interested-adult" rule. We do not address these arguments, because appellant has not established its threshold challenge to the court's determination that the evidence fails to establish a valid waiver of appellee's Miranda rights under the "totality of the circumstances."

At the suppression hearing and at trial the Commonwealth presented evidence regarding the circumstances surrounding the custodial interrogation of appellee. Police testimony established that five police officers arrested appellee at 6:00 p.m. at the home of his girlfriend's parents, where appellee had been staying for a few days. Appellee was informed that he was being arrested as a "fugitive from

[ 500 Pa. Page 113]

    justice." He was then handcuffed and transported to the police station in a police car driven by Detective Sergeant Nitchman. During the drive, Detective Pasquariello read Miranda warnings to appellee from a card,*fn3 but did not have any discussion with appellee or elicit any response. Upon arrival at the police station, appellee was taken directly to the detectives' office. His interrogation began at 6:20 p.m. and continued for an hour and fifteen minutes, until 7:35 p.m. Prior to questioning appellee, Detective Sergeant Nitchman removed the handcuffs and told appellee "that he could sit down." Appellee was offered coffee, which he refused. Appellee was told that "he had been arrested as a fugitive from justice and that it was in connection with a homicide investigation." The police asked appellee his age and appellee told them he was sixteen. There was no discussion of appellee's Miranda rights. However, Detective Pasquariello testified that, before taking appellee's statement,

"We took out -- I gave him a blank -- a form, which is the rights again, and asked him to, before we take a statement, he would have to ...


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