*1 he pushed a number of kicked and him and stabbed youths We one of them with a knife. stated that “[w]ielding” force,” a knife use of which was deadly of “amounts to the Pa.Super. under the circumstances. at unjustified 305-306, We a similar A.2d at 466-467. came to conclu- Sacco, 98 340 (1929), in sion pen where we held defendant’s use of a small knife was excessive in to inflict serious wound on victim of the fact victim had hit the defendant light Here, with his fist. use of a instrument” appellant’s “shiny given Bagby’s to inflict serious on arm was excessive injury one threatened appellant immediately girl was only nor girl any who was at him. Neither poking stick other before he stabbed appellant attackers had touched could point they nor does it have Bagby, appear caused serious to him since he had retreated behind injury clear, is not appellant ultimately injured the bar. How case, but in did his earlier use any injury justify his later Moreover, irrespective excessive force Bagby. against attackers, he against need assert force appellant’s by wielding negligently Bagby “shiny acted toward that she was instrument” when he must been aware escape. trying
Affirmed. Pennsylvania,
COMMONWEALTH CHRISTMAS, Appellant. Kevin Superior of Pennsylvania. Court March 1980.
Submitted Sept. Filed Appeal March Allowance of Granted Petition for *3 Defend- Chief, Assistant Public Packel, Appeals, John W. er, for Philadelphia, appellant. Philadelphia, District Henson, Attorney,
Eric B. Assistant Commonwealth, for appellee. VOORT, JJ. der SPAETH, and VAN BROSKY
Before SPAETH, Judge: a was tried as an
Appellant, juvenile, judge adult aby without was convicted of of sitting possession and jury, heroin with the intent to deliver. Post-verdict motions to appellant were denied and was sentenced one to seven argues On he years imprisonment. appeal refusing lower court erred in to grant suppress motion police a statement he made after his arrest.1 on Appellant was arrested August approxi- mately m., 8:00 when he was discovered in p. possession large quantity Appellant of heroin. was taken to the local then police building, district and to the narcotics unit at the Police Administration Philadelphia Building. One officers at the narcotics unit and recognized appellant in- formed arresting officer that appellant was seven- teen old years and that his father was a officer. called, Appellant’s he father arrived at Police Administration Building one hour approximately later. One of the officers told the father the circumstances of appel- lant’s arrest and the amount involved. heroin Appellant’s spoke for appellant fifteen minutes approximately and then indicated the officers that appellant wished to make a Appellant statement. was informed of his Miranda2 rights, presence waived them in the father, then made the statement he later sought suppressed.
A defendant’s waiver of his rights under Miranda
will not be presumed but must be
see Common
explicit,
wealth v.
Bussey,
168,
When
defendant
(1975).
In the case Common- per se failed to with the rule because comply wealth was interested nor informed adult. neither an an C., In 2a. Fare v. 442 U.S. 61 L.Ed.2d Michael S.Ct. Supreme federal of the United held that the Court States per deciding require applied does that a se in Constitution rule be intelligent. juvenile’s whether a of his waiver Miranda However, nothing Supreme suggests that our will not continue Court apply per se of state rule as a matter law. See Commonwealth Thomas, infra, C., supra; Fair v. filed after Michael Common Bussey, (waiver explicit supra of Miranda be as wealth v. must rejected despite a matter of state law the fact that this view has been States). Supreme of the United Court *5 as an father failed to interest- qualify In that his arguing a adult, facts that his father was points ed to the appellant investigating one of the officer a friend of police and so was not officers as that his father’s interest evidence rights understood his as appellant much ensure that argu- In investigation. support advance the police Thomas, 486 Pa. cites Commonwealth appellant ment held a Supreme where the Court that A.2d 1037 not as an interested adult. prison qualify counselor did difference between Thomas and An important in Thomas present prison case is counselor was that related to the We the difficult juvenile. appreciate position in which a be his child’s police may placed; officer parent to be regarded refusal cause officer cooperate may officers, fellow unfavorably superiors his and and fear of so color the officer’s discussion being regarded may per se Also, his with child. we if the is recognize rule with, to be complied police a officer parent confronted with his child’s as a police arrest must not act officer but as a parent; of the and his a juvenile, rights interests as are suspect, and paramount, required the consultation under se rule per used to pursue should not be the police investigation but discuss with the his juvenile Nevertheless, possible courses action. we are not persuaded that as general we should valid the accept propo sition that a officer as police never an interest may qualify adult, ed for we that parental may strong believe love be so despite position, his difficult officer parent may be able child’s interests If keep paramount. his he does not, adult, he may not as an interested qualify despite Wade, See Commonwealth v. as parent. status 453, 471-74, J., (1979) (NIX, 1369-70 concur ring) (hostility son); toward Smith, supra, (father’s son). indifference to
Here, appellant argues keep father did not his interests is paramount. perhaps There some indication the father have been as much interested in con with sulting appellant concerning source of the heroin as possible understood his ensuring appellant However, we not decide whether need courses of action.3 *6 officer defeated his interest police interest as a the father’s not, assume that it did and parent may as a but instead adult, with assump- he did as an interested for this qualify tion, it the Commonwealth apparent is nevertheless an adult. failed to that he was informed prove above, As the se rule the Commonwealth per stated under of police must that the informed the interested adult show the the situation and of constitutional juvenile’s juvenile’s juvenile between the and the rights, before the consultation Smith, v. adult. v. Commonwealth supra; Commonwealth Starkes, Here, father police appellant’s the informed supra. situation; appellant’s the and lower of Commonwealth the admit, however, the not police appel- court did inform lant’s of constitutional the appellant’s rights before consultation. found,
The and the lower court argues, Commonwealth informed, that the been it may father need not have because presumed officer, be that as he was police already fully a a We not at suspect. aware of as are appellant’s rights are not liberty adopt police to presumption. “[T]he law,” v. expected to be learned in Commonwealth 305, A.2d 10, 15, 453 Pa. 306 307 Just as McKinney, (1963). we not a defendant’s may presume past involvement with criminal has made him aware of his justice system Greene, rights, see 483 Pa. 394 A.2d Commonwealth not him (1978) (defendant’s jury 978 trial did make past aware of of trial so we by jury), may elements too right presume part police merely awareness on the of a officer example, concerning preliminary 3. For his dis- one officer testified cussions with the father follows: as father, you you talking say While were to the what did Q. give father about whether not he felt son should a statement or his or what he felt facts of the case was? Well, large quantity A. I informed him that he with a was found old, only years was 17 and be him to he that it would best for know, old, get, you try years to find out since he was 17 caught bags with 744 heroin. N.T., Day added). Suppression Hearing, p. (emphasis First 31
121 because of bis justice own involvement with the criminal Dixon, And see Commonwealth v. system. (1977) (even
A.2d 765 though defendant was once warned his rewarned). he rights, be Even where may defendant is an it has attorney been held that back- ground for presuming affords no basis an awareness of constitutional sufficient rights support finding See States v. there was an United waiver. intelligent Harrison, (2d 1971); F.2d Cir.
Cohen, (1972). attorney If an who has an presumed been with offense not be charged may accused, to be aware of the constitutional of an neither plainly, officer.4 It may be that the of the police failure to inform the adult decisive; juvenile’s will not be perhaps *7 Commonwealth will have met its burden if clearly the record demonstrates that the rights by adult was informed of these Webster, v. someone See Commonwealth 314, else. 328, 372, 353 (1976) (mother A.2d 379 by police; informed is there to basis assume that the mother any “[n]or have gained source.”). this information from another How- ever, here, there is no such we demonstration found no officer, case where a police or other for any parent matter, that has presumed, been because of his or her or position background, juvenile’s to have been aware the ruling attorney In presumed the defendant could not be to grand jury, have been aware of his in before the this court Cohen, supra, following upon Commonwealth v. relied the statement by Supreme “Accordingly, the United States in Court Miranda: we interrogation clearly hold that an individual for in- held must be right lawyer.... formed that he has the to consult with a As with warnings right anything of the to remain silent and that stated him, against warning can be used in evidence is an absolute prerequisite interrogation. No amount circumstantial evidence person may right have been aware of this will suffice in its Only through warning stead. such a is there ascertainable assurance 471-72, right.” the accused was of this U.S. 86 aware 384 at Cohen, S.Ct. 1626. Given this statement and our decision in Schwartz, 360, 379, dictum in Commonwealth 233 210 “[ujndoubtedly magistrate], A.2d defendant [the presided arraignments hearings, who had in hundreds of criminal silent,” right right knew that he had the to counsel and the remain accepted cannot be as accurate. in adopt presumption such fact, In our refusal rights. deci- Court’s Supreme this case is clearly supported Graver, 473 375 A.2d in Pa. sion Commonwealth were suspects. and her son There, both a mother (1977). inadmissible, despite However, was held the son’s confession because, mother, with his had time spent the fact that he the mother indicated that the record although apparently it did not also demonstrate her rights, been informed of had to her son.” available she informed of “was Id., A.2d at 473 Pa. at refusing suppress appel- The the lower court order is and the case is reversed lant’s statement post-arrest with this opinion. consistent remanded for a new trial VOORT, J., dissenting opinion. files VAN der VOORT, dissenting: Judge, VAN der the decision of dissent, and would affirm I respectfully in this juvenile’s parent judgment, court below. In my and competent and concerned case is an interested adult make a state- the defendant should discuss whether or not so is this Especially criminal conduct. ment about the son’s relationship between hostile showing any when there is no the father and the son. *8 Pennsylvania,
COMMONWEALTH PATTERSON, Appellant. John J. Pennsylvania. Superior Court 12, 1980. Argued March Sept. Filed Appeal Denied Jan. Petition for Allowance