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COMMONWEALTH PENNSYLVANIA v. NICHOLAS PAZ (05/06/83)

filed: May 6, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
NICHOLAS PAZ



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.

COUNSEL

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, ...


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