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filed: May 6, 1983.


No. 2744 PHILADELPHIA, 1981, Appeal from an Order of September 23, 1981, in the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 81-05-1065-1124 and 1150-1152.


Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Edward M. Kopanski, Glenside, for appellee.

Hester, Johnson and Popovich, JJ. Popovich, J., concurs in the result.

Author: Hester

[ 313 Pa. Super. Page 251]

Appellee, Nicholas Paz, was charged with burglary, criminal trespass, theft and criminal conspiracy on March 17, 1981. Following his arrest in Philadelphia and while detained by law enforcement officers, he was questioned concerning 66 unsolved burglaries. He confessed to 29 of these offenses; however, neither an attorney nor an "interested adult" was present at the time of the confession. Appellee was 16 years old when arrested.

Prior to trial, appellee filed an omnibus motion requesting, inter alia, the suppression of those statements elicited by detectives during his detention. The suppression motion was granted by the Court of Common Pleas of Philadelphia County on October 1, 1981 on grounds that the custodial interrogation violated the "interested adult" rule. Appellant/Commonwealth filed this appeal.

Despite widespread criticism and constant attack, it remains the law of this Commonwealth that a minor suspect be accorded the benefit of parental or "interested-adult" guidance before any of his incriminating statements issued while in police custody are admissible as evidence against

[ 313 Pa. Super. Page 252]

    him. Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. den., 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). Furthermore, the mere presence of the "interested adult" at the place of custody is not enough; the adult must be fully apprised of all rights belonging to the minor suspect before his presence and advice can be presumed capable of precluding undue police aggression and overreaching. Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975). Quite simply, and perhaps unnecessarily, a per se constitutional rule, known as the McCutchen rule, prevents the prosecutorial use of the incriminating statements of a detained minor suspect unless an "informed, interested adult" is present immediately before and during the issuance of such statements.

In Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663 (1976), Chief Justice Jones dissented and objected to the majority's extraction of the aforementioned per se rule. Due to the McCutchen court's thorough and detailed recitation of the facts, the Chief Justice believed the court was also concerned with the actual voluntariness of the confession. Furthermore, according to this Stanton dissent, the Starks court discussed all factors, not solely the presence of an interested adult, in considering the general admissibility of the minor's confession. Finally, Chief Justice Jones viewed Roane's refusal to admit the minor's confession as the result of the absence of the suspect's mother and the officer's coercive and uncooperative behavior; therefore, he believed the Roane court utilized the "totality of circumstances" in determining voluntariness. Chief Justice Jones found it incredulous, indeed, that the per se rule renders a bright, experienced 17 year old incapable of waiving constitutional rights while an uncounselled mentally-retarded 18 year old could validly waive those same rights.

In Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980), Justice Larsen dissented from the majority's recognition of the "informed, interested adult" rule and preferred

[ 313 Pa. Super. Page 253]

    to consider the individual factors of the particular case. For instance, he noted the defendant's familiarity with the criminal justice system, his understanding of constitutional rights and his close proximity to 18 years of age. He recommended the following holding:

Id., 488 Pa. at 163, 411 A.2d at 747.

Appellant would have us employ here the dissenters' approach in Stanton and Henderson to modify the per se rule, thereby permitting the admission of incriminating statements that are knowingly and voluntarily made in light of all the circumstances. We are disinclined to do so, for we are compelled to follow the majority opinion of our Supreme Court, however fragile we consider that opinion to be.

Appellant avers that two existing Pennsylvania Supreme Court decisions, Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1980) and Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975), have indeed modified the McCutchen rule, rendering it not applicable in every case where the suspect is of tender age. In Veltre, the minor defendant was tried before a jury and found guilty of two counts of first degree murder, rape and assault with intent to kill. While in police custody immediately after his arrest, and in the presence of his probation officer, the defendant related the implicative incidents of the crime and admitted to having no remorse. A plurality opinion, written by Justice Larsen and joined by Justices Flaherty and Kauffman, identified the per se position taken by Roane and its progeny as one "designed to insure that constitutional protections would not be lost as a result of the innocence and inexperience of youth being taken advantage of by overbearing interrogation." Commonwealth v. Veltre, supra,

[ 313 Pa. Super. Page 254492]

Pa. at 242, 424 A.2d at 488. The three justices held, however, that the defendant was not the type of inexperienced and naive youth thought by the Roane court to be in particular need of adult supervision. Instead, the plurality considered his prior criminal activity, his prior detention in a juvenile detention center, his refusal to speak until his probation officer arrived,*fn1 and his near average intellect. In analyzing these specific factors, the plurality deemed the waiver voluntary and the confession properly admitted.

Justices Roberts and O'Brien dissented. They recognized the continued vitality and applicability of the McCutchen rule. Regardless of a minor suspect's particular intelligence, experience and comprehension of constitutional rights, his incriminating statements are not admissible unless issued pursuant to the advice of an "informed interested adult."

Justice Nix, in a separate dissent, agreed that the "interested adult" rule may not apply where the minor is particularly well versed in the constitutional rights of criminal suspects; nevertheless, he did not definitively so hold since he deemed the confession inadmissible under the more flexible "totality of the circumstances" test. Appellant maintains that insofar as Justice Nix dissented on application of the facts only and hinted an agreement with the plurality's qualification of the McCutchen rule, no per se rule applies. We are constrained to disagree. At no point did Justice Nix expressly agree with the plurality's recitation of the law; mere innuendo is not enough to glean a definitive position. Justice Nix merely opined that there was no waiver under the less restrictive "totality of the circumstances" test. Veltre is simply a plurality opinion having no effect on existing law.

Appellant similarly misconstrues Webster. The Webster court quite unequivocally held that police officers may not

[ 313 Pa. Super. Page 255]

    prevent a detained minor from consulting an interested adult before interrogation. In fact, they must provide a reasonable opportunity for the accused to acquire legal advice or the aid of an "informed, interested adult." Appellant isolates the Webster court's refusal to categorically hold that a minor is legally incapable of waiving his constitutional rights. According to appellant, this refusal is evidence of the court's reluctance to apply the per se McCutchen rule. We disagree with this interpretation. Webster simply renders a minor incapable of making a voluntary confession where he is denied consultation with an attorney or an "informed, interested adult"; he can, however, waive his constitutional rights once he is permitted such consultation.

In Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), reh. den., 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979), the U.S. Supreme Court inquired into the "totality of the circumstances" surrounding the detention and interrogation of a minor suspect. It perceived no basis for applying a different analysis to whether a minor knowingly and voluntarily waived his rights than to whether an adult's waiver was valid.

Appellant directs us to follow Fare. We will not. Fare's effect on Pennsylvania law was aptly and succinctly elucidated in Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981). Henderson noted that the state court in Fare had erroneously imposed greater restrictions on law enforcement officers during interrogation than required by the federal Constitution. Fare, according to Henderson, has no power to restrict a state court from imposing strict measures in tune with its own Constitution; accordingly, Fare bowed to a state's freedom to provide rights and liberties through its Constitution that expand correlative provisions of the federal Constitution.

Finally, appellant believes the recent opinion in Commonwealth v. Jenkins, 499 Pa. 426, 453 A.2d 945 (1982), rejects the per se McCutchen rule and authorizes the sole application of the "totality of the circumstances" test. The investigating

[ 313 Pa. Super. Page 256]

    officers in Jenkins first arranged for the transportation of the maternal grandmother of the defendant's child to the police station where the defendant was detained. They notified the defendant's grandmother; however, she was unable to appear. As a result, they tried to locate his father, but to no avail. Eventually, they secured the presence of his uncle in the interrogation room. The uncle was instructed and fully apprised of his nephew's constitutional rights before any statement was forthcoming. A second statement was interrupted when the defendant's father appeared.

The defendant's uncle was concerned for the suspect's welfare and adequately filled the "informed, interested adult" rule. Jenkins simply refused to expand the McCutchen rule to a " most interested adult" rule. We note in a Jenkins footnote where the majority writer adheres to his earlier opinion that the "interested adult" rule is improper; nevertheless, this view is obiter dictum and not indicative of the majority's sentiments.

Until a definitive and precise ruling indicates otherwise, the "informed and interested adult" rule remains intact.

Order affirmed.

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