Commonwealth v. Gaskins
369 A.2d 1285
Pa.
1977
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*1 Pennsylvania COMMONWEALTH of Appellant. GASKINS, Supreme Pennsylvania. Court of

Argued March Decided Feb. *2 Philadelphia, Pallastrone,

Rudolph Bachetti, S. Geo A. appellant. for Atty., Fitzpatrick, Emmett Steven Gold-

F. Dist. H. E. Appeals Div., Atty., Chief, Deborah blatt, Asst. Dist. Glass, appellеe. Philadelphia, for O’BRIEN, ROB-

Befores MANDERINO, ERTS, POMEROY, JJ. NIX and OPINION ‍​​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌​‌​​​​​​‌​​​‌​‍O’BRIEN, MANDERINO, Jus- NIX ROBERTS, tices. by jury

Appellant, Gaskins, of was convicted shoоting degree Rob- first death murder of the for denied, he Speakes. post-trial motions After werе ert imprisonment. life This direct was sentenced to followed.1 alleged errors appеllant presents

While of them. Gas- review, only discuss for our we need one kins, he was arrested оn given to statements that certain Appellate appeal pursuant Court Jurisdic We hеar II, 202(1), § July Art. Act P.L. tion Act (Supp.1976). § 211.202(1) P.S. 17 240

police’ suppressed should because did not have an oрportunity with counsel an interested adult or rights.2 before he waived his Miranda Common (1975); 466 Pa. (1975); wealth A.2d 669 Pа. argu agree Because we ment, we reverse and for a new trial. years

Appellant old at was sixteen and eleven months the time of his arrest. He was awakened go requestеd a. m. and two 8:20 questioning with them because ‍​​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌​‌​​​​​​‌​​​‌​‍he was wanted cerning Speakes. Appellant tаken to death of Building ques- the Police he was interroga- beginning tioned a. m. 9:40 Prior *3 tion, warnings Miranda were read and he waived him rights. gave his his first statement Gaskins p. by about 1:18 followed a formal was m. and рrior to later that fession No consultation afternoon. permitted his Police waiver wаs at the Building.

However, there as to is a conflict the record told, prior depar- whether was Commonwealth, urged by relying upon 2. It is the Mitchell, (1975), argument v. 346 A.2d 48 that inapplicable has been wаived. is here. In Mitchell case, that unnecessary pre-arraignment we held a that claim оf delay pre-trial, prior not though was raised even waived it was Futch, our decision in Commonwеalth 417 prompt arraignment penalty Thé fact that the for a of the violation had rule not bеen announced did not excuse pre-trial. counsel’s failure to raise a such Pa. at viоlation case, A.2d at In the instant ob- was confession on February tained suppression 1973. The mоtion heard was and denied on June 1973. Both before events occurred well line, our decision in the earliest of this was announced November 1974. nothing comparable Because thеre to a was which, Rule of violated, Criminal Procedure if should have been counsel, known аnd by raised analysis a inappropriate. Mitchell is Counsel challenged herein the genеral confession on a voluntari- ness basis including knowing the issue of a waiver. According ture, to the that she him. could witnesses, she declined such an offer because younger children the to care for the need given There whether she a is also a conflict as to was phone her could number reach it was not son. clear that Gaskins Nonetheless, is Mrs. questioning, nor she notified be- called to the was gave we stat- fore he formal confession. In ed: showing opportuni-

“[Ajbsent that had parent ty an interested informed or adult or counsel before ‍​​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌​‌​​​​​​‌​​​‌​‍waived his rights, his waiver will ineffectual.” to es The record fails 350 A.2d at 830. Pa. at accept the Com Even if opрortunity. tablish we such testimony regarding Mrs. was what Gaskins monwealth’s necessary told, is feel this meets what we do not Mc case is unlike Commonwealth McCutchen. This January 28, (filed Fadden, Mc- 1977), requirements of whеrein we held that case, the defendant’s satisfied. In Cutchen were arrested, present informed mother was rights. his Miranda of the and read nature Additionally, period indicated a record her son during mother could advise minutes which the interrogation any before was initiated. case, is no In there instant

369 A.2d at showing either that son that Mrs. was aware Gaskins *4 involvement, any suspicion or that actual was under rights informed of under to mere offer allow from The time he was taken cannot her son in these circumstances opportunity satisfy requirement provided. opportunity to con- appellant not have did

Because rights waiving interested adult sult with an Miranda, supprеssed.3 the statements should be ‍​​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌​‌​​​​​​‌​​​‌​‍Smith, Commonwealth v. 350 A.2d supra; (1976); Commonwealth v. Common- Chaney, supra; wealth v.

supra; supra. therefore We reverse and herewith. a new trial consistent

JONES, J.,C. dissents. POMEROY, dissenting opinion J., in which filed a JONES, J., EAGEN, joined. J., C. and dissenting.

POMEROY, Justice, opinion my dissenting in in For the reasons stated Lee, [1977] (joined by Mr. Justice Justice Mr. Chief JONES EAGEN), I dissent. ‍​​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌​​​​​​‌​‌​​​​​​‌​​​‌​‍join opinion. J., ap- that McCutchen should not be

3. The Commonwealth рlied retroactively. previously Court has stated apply that rule cases were on that we will direct which See, g., at the time of the case. e. Common- decision Smith, wealth v. Common- wealth v. This case stage was at that when McCutchen was decided.