No. 26 E.D. Appeal Docket, 1983, Appeal from the Order of the Superior Ct. dated Dec. 30, 1982, entered at No. 1759 Phila., 1981, reversing the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated June 11, 1981, entered at Nos. 2369-72 April Term, 1980, Pa. Super ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., filed a concurring opinion. Nix, C.j., and Zappala, J., filed dissenting opinions.
In the dark early evening of January 24, 1980, James Duggan, manager of a local Philadelphia meat market, drove to the Continental Bank at 19th and Walnut Streets to make an after-hours deposit. He parked his car at the corner, left it, and proceeded to walk toward the night depository. He was carrying a bank bag containing cash, checks and food stamps all totaling approximately $4,000.00. As he approached the deposit box he was confronted by at least two persons, one of whom positioned himself between Duggan and Duggan's automobile. The victim noticed several people standing nearby at a bus stop and he cried out for help. None of the bystanders responded to his plea and the victim started to run. On his heels was one of the attackers. As he raced into the street he slipped and fell to the ground. His pursuer snatched the money bag Duggan was carrying and fled in the darkness. The victim immediately notified the authorities of the robbery.
During the investigation of the crime a witness identified the appellant, Eric Williams, as one of the robbers. This
information was received by detective Kuhlmeier who, in turn told detectives Walsh and Russell of the witness identification. Detectives Walsh and Russell were told also that a warrant for the arrest of the appellant had been issued.*fn1 In addition, Detective Walsh had received "street information" that Eric Williams was involved in the robbery.*fn2
On February 6, 1980, at approximately 7:00 P.M., the appellant was arrested by detectives Walsh and Russell. At the time of his arrest, appellant was 17 1/2 years old.*fn3 He was taken to the station house where he was met by Detectives Kuhlmeier and Romano. He was informed of the circumstances of the crime and the reason for his arrest. Appellant was asked as to the whereabouts of his parents. He stated that his father could be reached at his home. Detectives Kuhlmeier and Romano left the station and drove to the Williams' residence. There they met Mr. Ollie Williams, the appellant's father. Detective Kuhlmeier informed Mr. Williams that his son had been arrested, and the reasons for the arrest. Mr. Williams accompanied the detectives back to where the appellant was being held.
Upon arriving at the station, Mr. Williams was taken to his son and the two of them were permitted to briefly consult in private.*fn4 Following the father-son consultation, the appellant and his father were advised of the appellant's Miranda rights*fn5 and they were jointly asked seven comprehension
questions.*fn6 During the time that appellant and his father were given the Miranda warnings and asked the comprehension questions, they were together and had a continuing opportunity to confer.
In the presence of his father, the appellant waived his Miranda rights and made an inculpatory statement. Detective Kuhlmeier, sitting in front of a typewriter, took appellant's statement, typing each question as asked and each answer as given. Shortly after 9:00 P.M. the completed formal confession was signed by both the appellant and his father.
Preliminarily, the appellant filed an omnibus pre-trial motion seeking, inter alia, the suppression of his confession along with all physical evidence and all in-court and out-of-court identification. Following a hearing on the motion, the lower court ordered appellant's statement suppressed.*fn7
The court's ruling was based upon the testimony that appellant's father was not informed of appellant's constitutional rights prior to their private conference; and that after the Miranda warnings were given, the appellant was not provided an opportunity to consult with his father out of the presence of the police. The Commonwealth appealed*fn8 and the Superior Court reversed holding that since his father was present when the appellant waived his rights and confessed, the waiver was knowing and the confession voluntary.*fn9 We granted appellant's petition for allowance of appeal.
The principal issue raised in this appeal is whether the confession of a 17 1/2 year old juvenile suspect must be suppressed on the basis that he did not have an opportunity to privately consult with his father after both were given the Miranda warnings and asked the comprehension questions. The appellant argues that the police must give a juvenile suspect an opportunity to consult with an interested adult prior to interrogation. Further, the interested adult must be informed of the juvenile's constitutional rights before the juvenile and the adult confer in private. The appellant insists that since neither he nor his father was advised of appellant's Miranda rights prior to their brief consultation out of the presence of the officers, his confession should be suppressed notwithstanding that both were informed of his rights and they had an opportunity to confer in the presence of the authorities immediately before and during the time he gave his confession.
Appellant's argument is grounded upon the per se "interested adult" rule which evolved out of this Court's decisions
in: Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); and Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).*fn10
In Roane, a 16 year old juvenile defendant was arrested at his home. His mother followed him and the police officers to the station. After being made to wait more than two hours while the police questioned her son alone, the juvenile's mother found her way into the interrogation room. She then was permitted to speak with her son in that room, in the presence of the police officers. While his mother was present, the juvenile was advised of his constitutional rights. The suspect's mother told the police that she did not want her son making a statement and she wanted an attorney for him. The police ignored her comments, accepted the juvenile's waiver of rights, and took his formal statement. In a plurality opinion ruling that the statement must be suppressed, then Justice O'Brien (later Chief Justice) said:
"An important factor in establishing that a juvenile's waiver of his constitutional rights was a knowing and intelligent one would be evidence that, before he made his decision to waive those rights, he had access to the advice of a parent, attorney, or other adult who was primarily interested in his welfare."
Commonwealth v. Roane, supra, 459 Pa. at 394, 329 A.2d at 288.
"Since the record indicates that the Commonwealth first attempted to exclude appellant's mother from the interrogation 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 ...