Commonwealth v. Barnes
Commonwealth v. Barnes
Opinion of the Court
OPINION
This is an appeal
Except for a visit to the lavatory at about midnight and a meal at about 12:30 a. m., appellant was left alone in the PAB interrogation room from 11:00 p. m. until 4:00 a. m. Although the record does not conclusively establish the exact time of appellant’s arraignment, it is safe to infer that appellant was arraigned sometime shortly after 4:00 a. m. Just before being arraigned, appellant telephoned his father, but appellant was informed by his sister that the father was already enroute to the PAB, in response to a telephone call from the Juvenile Division. Appellant’s father did arrive in time to talk to appellant at the time of arraignment.
The underlying rationale for this Court’s special solicitousness toward juveniles confronted by police interrogation was explained recently in Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977):
“In a series of our decisions beginning with Commonwealth v. Roane, supra, [459 Pa. 389, 329 A.2d 286], we announced that the administering of Miranda warnings to a juvenile, without providing an opportunity to that juvenile to consult with a mature, informed individual concerned primarily with the interest of the juvenile, was inadequate to offset the disadvantage occasioned by his youth. The new rule appreciates 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.”*560 Id., 472 Pa. at 498-99, 372 A.2d at 800 (footnotes and citations omitted).
From Smith and its predecessors, the following elements have emerged as prerequisites to a juvenile’s waiver of his or her Fifth and Sixth Amendment rights:
(1) the juvenile must be given the opportunity to consult with an adult;
(2) the adult must be one who is genuinely interested in the welfare of the accused juvenile;
(3) the interested adult must be informed and aware of those Fifth and Sixth Amendment rights guaranteed to the juvenile.
Commonwealth v. Smith, supra, 472 Pa. at 500-02, 504, 372 A.2d at 801-02, 803.
It requires no complicated analysis to reach the conclusion that in the instant case the Commonwealth did not satisfy these prerequisites. 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 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
Judgment of sentence is reversed and a new trial is ordered.
. This Court’s jurisdiction is based upon section 202(1) of the Appellate Court Jurisdiction Act of 1970. 17 P.S. § 211.202(1) (Supp.1978-79), superseded by 42 Pa.C.S.A. § 722(1) (1978 Pamphlet, part I).
. For a brief discussion of the development of the law governing such confessions, see Commonwealth v. Smith, 472 Pa. 492, 498-99 & n.6, 372 A.2d 797, 800 & n.6 (1977). In the instant case, although the statement by appellant and the trial of appellant occurred prior to this Court’s decision in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), we have held that cases on direct appeal are entitled to the benefit of McCutchen and its progeny. Commonwealth v. Graver, 473 Pa. 473, 476 n.1, 375 A.2d 339, 340 n.1 (1977), citing Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Reargument was granted by this Court in the instant case limited to whether appellant had properly preserved his issues on appeal for appellate review. See Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Appellee, in its brief on reargument, concedes that appellant properly preserved the McCutchen issue in accordance with Blair and Pennsylvania Rule of Criminal Procedure 1123. Because we conclude that the McCutchen rule was violated and a new trial is necessary, we need not determine whether the other issues raised by appellant were properly preserved for our review.
. In mustering factual support for the waiver argument, the Commonwealth states that because appellant later validly waived his right to a jury trial, he could also have validly waived his right to consult with his father during police interrogation. In pressing this argument, the Commonwealth ignores the fact that appellant waived a jury trial after consulting not only with his father but also with an attorney.
Dissenting Opinion
dissenting.
It would perhaps suffice in this case merely to repeat my long-held views (1) that this Court’s rules regarding waivers of Miranda rights by juveniles are “unwise, unnecessary, and unwarranted,”
The majority now states that the opportunity to consult with an interested adult is not enough; in addition, it must be shown that there was a “meaningful consultation” between the juvenile and an adult who is aware of the juvenile’s rights before a valid waiver can be said to have taken place. Opinion of the Court, ante at 557.
. Commonwealth v. Chaney, 465 Pa. 407, 409, 350 A.2d 829 (1975) (Pomeroy, J., dissenting, joined by Jones, C. J., and Eagen, J.). See also, e. g., Commonwealth v. Smith, 472 Pa. 492, 506, 372 A.2d 797, 804 (1977) (Pomeroy, J., dissenting, joined by Eagen, C. J.); Commonwealth v. Webster, 466 Pa. 314, 329-31, 353 A.2d 372 (1975)
. See Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974); Commonwealth v. Starkes, supra note 1; Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975).
. Commonwealth v. Harvell, 473 Pa. 418, 423, 374 A.2d 1282, 1285 (1977) (Pomeroy, J., dissenting, joined by Eagen, C. J.). See also, e. g., Commonwealth v. Lawson, 478 Pa. 200, 207, 386 A.2d 509, 512 (1978) (Pomeroy, J., dissenting, joined by Eagen, C. J.); Commonwealth v. Walker, 477 Pa. 370, 377, 383 A.2d 1253, 1256 (1978) (Pomeroy, J., dissenting, joined by Eagen, C. J., and Larsen, J.); Commonwealth v. Lee, 475 Pa. 314, 316, 380 A.2d 371 (1977) (Pomeroy, J., dissenting, joined by Eagen, C. J.); Commonwealth v. Graver, 473 Pa. 473, 477, 375 A.2d 339, 340 (Pomeroy, J., dissenting); Commonwealth v. Gaskins, 471 Pa. 238, 242, 369 A.2d 1285, 1287 (1977) (Pomeroy, J., dissenting, joined by Jones, C. J., and Eagen, J.); Commonwealth v. Lee, 470 Pa. 401, 406, 368 A.2d 690, 693 (1977) (Pomeroy, J., dissenting, joined by Jones, C. J., and Eagen, J.).
. Cf. Commonwealth v. Smith, supra note 1, 472 Pa. at 505-06, 372 A.2d at 803-04 (Manderino, J., concurring). The new rule may still be difficult to apply, for how is one to know that the mandated consultation has in fact been “meaningful”?
. See, e. g., Commonwealth v. Starkes, supra note 1 (mother advises son to “tell the truth;” waiver found invalid); Commonwealth v. Smith, supra note 1. Apparently, today’s holding is the Court’s answer to the question which I ventured to put in my dissent in Smith, supra note 1, viz., whether “the minor could effectively reject an opportunity [to consult with a concerned adult], which the majority has invested with due process significance, when by hypothesis he is unable to make a valid waiver of his other constitutional rights regarding interrogation without the guidance of a concerned adult.” 472 Pa. at 508 n.4, 372 A.2d at 805 n.4.
. Commonwealth v. Smith, supra note 1, 472 Pa. at 509, 372 A.2d at 805 (emphasis in the original).
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- COMMONWEALTH of Pennsylvania v. Kenneth BARNES, Appellant
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