*1 Aрpellant. Commonwealth v. Moses, J., March 1971. Before C. Bell, Submitted Pomeroy and Bar- Roberts, O’Brien, Jones, Eagbn, JJ. BIERI, Cohen, A. M. Assistant Public Dean J.
John Public Ross, Defender, H. George Defenders, appellant. District Assistant Los, Attorney, Mary
Carol for Common- Attorney, District Duggan, W. Robert appellee. wealth, 31, 1971: December
Opinion Me. Justice Eagen, a convicted was Moses, Leonard Tbe appellant, and punishment degree, murder first jury *2 in of motions denial After fixed at life imprisonment. was sentence trial, a new of judgment arrest and/or appeal This directed. jury the court as the imposed was then filed. the support the trial evidence sufficiency we have nevertheless, not
jury’s questioned; verdict is the evidence studied the record and are satisfied of murder a finding guilt to sustain ample enough the could find jury the Therefrom, first degree. facts. following on of black
About 3 p.m. April 5, 1968, group the were observed youths, including appellant Moses, chalk mark on the of a house white outside placing in wherein County, Mrs. Homewood, Allegheny Mary a white woman members of her family Ampio, on April resided.1 About 9 Moses and p.m., 6th, several other a William returned youths, including Murphy, to the address and Moses and another in Ampio youth each threw a homemade firebomb the house. group entered the One the bombs building through window the it to be living room, causing immediately in flames.2 Mrs. who Ampio, was enveloped liv room suffered watching television, severe ing bums of her from fifty-five percent body over which complica her causing death. developed tions coincidence, just may day following but this be was 1 It dastardly citizens, one of assassination Nation’s finest King. distinguished Luther Dr. Martin testimony, During being present his trial Mоses admitted However, Ampio single house was firebombed. he said a Murphy William and that he thrown and the bomb was others Murphy knowledge carrying prior was a bomb or no had had use it. intention
At of oral incrim evidence admissions and an trial, recorded statement made inating Moses to admitted over objection.3 was This is the as prime of error. The as signment Commonwealth’s testimony to the circumstances under which came this evidence into may existence summarized follows.
After the senseless crime involved, police worked for months in an effort to ascertain its perpetrators. Finally, November based on re- information received from one of cently at the youths present time of the a warrant firebombing, issued charging Moses with murder. Moses seeking out, learned that he then a resident of the Auberle Home for Boys McKeesport, and three Pennsylvania, officers directed to were to the proceed Home to take him into Before custody. to the traveling these Home, *3 officers contacted an at authority institution him and informed phone their intended visit and When the officers arrived purpose. about 11 p.m., they met with three social first workers of the Home and nature of the criminal explained charge lodged The Moses. latter was then against into brought the officers and the room where representatives of the Moses gathered. institution were was in- immediately the officers were why formed and one of there, the social then a Mr. said he Denman, workers, “wanted to ques- The officers the boy”. readily tion assented, but sug- occur outside questioning their gested that no in order possible hearing violation ensuе Mr. rights. of Moses’ Denman and an- then took Moses worker into other social another room. later they minutes A few emerged, Moses was custody. onto police taken suppress timely motion evidence A was denied after hearing. pre-trial automobile which
Immediately upon entering one back to transported group Pittsburgh, officers advised Moses that he was with again charged arson-murder of him Mrs. and advised Ampio all of his constitutional including rights, remain silent and his not to any answer questions unless a him. assist lawyer present When officer started to further “discuss” these Moses rights, “I I said, know my rights, my During know rights”. the ride back to further was said Pittsburgh, nothing about the crime involved. group arrived Pitts police headquarters at 11:42
burgh about ten p.m., minutes after later, Moses of again his constitutional advising mandated Miranda v. Arizona, U.S. 86 S. Ct. 1602 one of the (1966), who officers, аccompanied him from McKeesport, began to question Moses con cerning Ampio firebombing. Without hesitation, Moses to tell the proceeded officer of the firebombing and the he therein.4 part played At 12:12 a.m., officer proceeded have Moses’ admissions recorded or to take “a formal statement”. The officer’s questions and Moses’ answers were recorded on a typewriter. When this was at 1:42 completed a.m., Moses read the it at the end signed statement, initialed each page. theAt Moses was sixteen time, years age and did not the assistance counsel. challenging propriety the evidentiary use of Moses’ oral incriminating admissions and written *4 sole trial, statement contention of the appellant to counsel guaranteed is that Sixth 4 said, part, youths that he joined Mоses and the other by filling pop preparing gasoline firebombs bottles with taken placing automobile and from an abandoned bottles; wicks in the they proceeded Ampio residence, to the then and that lit the wicks building. a bombs at window of the and threw 354 requires
Amendment
to the United States Constitution
juvenile
a
confesses
“that counsel be
present
not
crime”.
It is not asserted that Moses
capital
of all of his constitutional
and
advised
fully
clearly
argued
he incriminated himself.
it is
But,
before
rights
understand
“juvenile
ability”
fully
that a
lacks
hence cannot
rights and,
and assert his
advice of a
such
without
effectively
rights
waive
reject such
more mature-
We
person.
emphatically
where a sixteen-year
prophylactic rule, particularly
concerned.
seventeen-year-old
true
whether
incriminat
that,
determining
It is
voluntаrily
of an accused were
given
statements
ing
he
his consti
intelligently
or not
waived
and whether
circumstances must
all of the attending
rights,
tutional
and intelli
including
age, maturity
considered,
involved. See
individual
Commonwealth
gence
In support Ct. U.S. 82 S. Colorado, (1962), v. 68 S. U.S. Ct. 302 Ohio, but (1948), Haley not enunciate the rule did appellant cases ad- these vances. *5 in ruled that the court cited,
In each of the cases erro were criminating the defendants of statements totality the cir neously the at trial because admitted of compelled the state conclusion cumstances involuntarily given.5 did In neither case ments were fifteen-year-old Court that an uncounseled state right law, of may matter counsel as a not his waive proscribes process evi nor that due was it held dentiary incriminating made such statements of use legal or other of counsel in the absence an individual opin person. language in both While there is mature position, appellant’s ions which lends comfort to considera not read out of context without should presented. tion the facts these cases carefully of the circum- аll We have scrutinized attending incriminating Moses’ statements stances persuaded trial court error are not that the committed failing as matter this inadmissible a to rule evidence tenth-grade at time was student of law. Moses enjoyed challenged obtained and at evidence was testimony average intelligence, as indicated his least during proceedings. He court testified in the trial hearing suppression pretrial and at and in trial, neither deny receiving warnings he his did constitu- instance incriminating himself, before nor did he tional warnings. say he failed to understand these Whether intelligently waived his to counsel for was Moses facts. trier maintained that the evidence It is next was insuffi- beyond law establish a matter reason- cient fifteen-year-old Gallegos, the defendant was held incom In days during period before he confessed аnd for five municado repulsed by him police. to see were mother efforts fifteen-year-old interrogated Haley, defendant was continu by relays policemen ously before hours he five confessed he advised remain no time silent. death, able in- Ampio’s doubt Mrs. was caused jury suffered from the firebomb- resulting blaze This issue ing. rejected was considered co: Johnson, defendant’s See Commonwealth v. appeal. *6 445 Pa. 284 734 276, A. 2d (1971).
The error been con- remaining assignments sidered and found to merit. be without
Judgment affirmed.
Dissenting Opinion Mb. Justice Eobebts: The record this case and law—both controlling constitutional and decisional—as well as established and the practices shared of com- widely views join mentators common and everyday experience simple justice in from the urgently compelling dissent major- ity’s refusal to relief. grant
The that majority holds Leonard a sixteen- Moses, year-old with no boy prior with the experience law, taken some time p.m. after the police from the charitable home for boys where he and placed resided in a car alone with three there policemen, “know and made ingly the intelligently” judgment to surrend er both constitutional to remain silent and his the assistance of counsel, with him that result police interrogated their “unsupervised pleasure”1 secured a confession ad objection over mitted at trial which convicted him of murder.
The reached its majority conclusion by purporting on rely “totality circumstances” test which in Commonwealth v. adopted we Darden, 441 Pa. 41, 257 (1970), A. 2d determining effectiveness their waiver Miranda of juveniles’ rights. However,' , it becomes clear that upon analysis, sole basis of Arizona, U.S. 1602, 86 S. Ct. (1966). a new majority’s finding waiver effective of an average six- sophistication pronunoiamento, “the days teen-year-old times”. these sophistica alleged majority’s on this The reliance assump impermissible First, for two reasons. tion is intrinsically been contradicted has unsound. It tion is authority called by virtually every has been other juveniles make capacity upon to determine here.2 binding judgment legally is involved ma by relying assertion, on invalid Second, our constitu jority per rule which violates se creates obligation case determination make a case tional intelligent” “knowing occurred. waiver of whether 86 S. Ct. 475-76, 436, 384 U.S. Arizona, Miranda v. (1966); Zerbst, 304 U.S. Johnson v. 1628-29 58 S. Ct. majority primarily on in its two factors relies *7 totality cir application of the purported of Darden’s (1) approach: fact that Moses was a cumstanсes grade in sixteen-year-old on the date student tenth “enjoyed (2) at question; assertion that Moses its and testimony intelligence, average indicated least proceedings.”3 court in the trial pp. 8-20. See attempts point majority to bolster its conclusion also The that “he failed to ing testified understand Moses never that out ignores majority Supreme warnings.” thus Court’s The these government prove holding burden is on the Miranda that in intelligently knowingly waived his Miranda and the defendant that interrogation continues without of an rights. “If the heavy taken, upon attorney burden rests is statement and knowingly the defendant and in government demonstrate against privilege self-incrimination and his telligently waived Illinois, appointed counsel. Escobedo v. State of retained 1758, 1764, 12 L. Ed. 2d 977.” S. Ct. n. U.S. (1966) Arizona, 86 S. Ct. U.S. added). (emphasis old years is clear that Moses was sixteen it Though, I in question, on the day and a tenth student grade “en- Moses assertion that with the disagree majority’s In the first joyed place, at least average intelligence”. I reading do not majority, merely by believe that the realistic notes of can draw any Moss’ at testimony trial, “intelligence”. or reliable Moses’ concerning conclusions effectiveness the second the waiver whose place, sup- and Mose’s November, 1968, took disputed place until eight trial not held and were pression hearing testimony, I that Moses’ months later. do not believe assistance guidance a courtroom and with back determine Moses’ of an can be related attorney, he interrogated. at the time that intelligence makes the reasons as follows. First majority The sixteen-year- assertion that “the average unsupported old in these and times” is days sufficiently “sophisti- to make a capacity knowing cated” to have of his Miranda waiver without intelligent from “a more mature least some advice person”. to Leonard’s status as a then sixteen- majority points and their of his tenth “aver- grader assumption year-old and concludes that Leonard is intelligence”, age fur- sixteen-year-old”. “average Therefore, majority Moses made a knowing ther concludes, intelligent waiver, alone with the three policemen while car. I if were convinced—and I
Even am not—of the assertion majority’s intrinsic soundness has sixteen-year-old” to make capacity “average *8 waiver of intelligent and his Miranda knowing rights, I of an adult, would the advice still regard without the as constitutionally conclusion impermissible. majority’s conceded that if it is Leonard was Fоr even generally he may have been intélligence”, “average below of tenth in sixteen-year-old graders of the particu- average capacity judgment required an effec lar that is intelligent knowingly capacity to and tive waiver—the ly rights. In Miranda as the United States fact, waive recognized supra, Supreme Zerbst, Johnson v. Court knowing understanding capacity to make and rights waiver of is much a function of Miranda as “background” “experience” particular accused’s and intelligence.4 nothing of his there And the record background experience to indicate that Moses’ and de veloped capacity knowingly intelligently rights. waive record Indeed, establishes prior that Moses had no contacts with the law. More ignores majority’s reasoning over, the fact youth’s capacity knowing intelligent amake may vary waiver with circumstances at the time and place alleged waiver is have occurred. finding rights
A of waiver of Miranda cannot be “average” capacity on the basis of sustained of a may belong. finding to which the defendant class A rights federal these waiver constitutional can only analysis on the basis of rest individualized particular capacity, particular each defendant’s knowing case, make a circumstances and un- derstanding waiver. As the Supreme United States v. Johnson Zerbst: pointed stated Court “It has been every indulge that ‘courts out reasonable presumption against of fundamental waiver’ presume acquiescence not ‘do that we in the loss rights’. A ordinarily of fundamental waiver is an in- relinquishment tentional abandonment of a known privilege. determination whether therе intelligent waiver been an has to counsel upon depend, particular case, in each must facts Zerbst, 304 U.S. Johnson S. Ct. *9 including surrounding the and that case, circumstances background, experience, accused.” and conduct the (cita- (emphasis added) Id. 58 S. Ct. at at omitted). tions rejection” prophylac- majority’s “emphatic of a
The non-sequitur. per ma- For the rule is a what tic se any jority per six- to create a se rule that has done is teen-year-old, generally “average intelligence”, is who capacity regardless particular to understand of Ms significance rights appreciate and the waiv- particular regardless of the circumstances and er, alleged place the to have the time and that waiver knowing be found to made a been effected, will intelligent and waivеr. reality
Only by ignoring the can both record and majority conclude that effective waiver occurred sixteen-year-old squad placed police in the setting policemen and in that coercive car three with warnings. pro Upon forma his Miranda him recited to nothing support I find to an record, review waiver. effective boy’s at the time arrest at charitable
Present adult social workers: Father Sherwin, three home were and Mr. Denman. These adults Crocker, Mr. Walter youth’s actively Mr. welfare, interested were boy’s complete enjoyed confidence. In Denman police social the three workers officers youth opportuMty to inform the of his constitu- had and the remain silent counsel. tional police asked the officers if Denman Mr. Indeed, juvenile place could take intеrrogation of the their presence. request deMed. The stated was to the
This boy questioning any at that time adults violate instead would squad boy in was car with three until waited before Mm the warnings.5 officers giving statement made to the boy’s guardians by police was If incorrect it was legally highly misleading. a juvenile meant suggest interrogation be a af clandestine constitutionally required *10 clear was a law. The fair, misstatement the Su an preme Court in Miranda specifically stressed that “ to exercise” the Miranda “must [opportunity rights be afforded the throughout interrogation.” [defendant] 384 U.S. 86 Ct. 1602, S. 1630. Certainly tMs would sixteen-year-old have had a reasonable “[oppor tunity to exercise” rights his while in the company but thirty-minute the car guardians police custody afforded no the accused virtually to “[opportunity exercise” rights. the Additionally, police offficer’s statement to guardians the effectively discouraged from precluded even the adults being present seek youth access the ing during police interrogation. Cf. Harmon, Commonwealth v. Pa. 440 269 A. 195, 2d 744 in (1970), sustaining where the suppression of a juve- 5 police The officer’s refusal advise Leonard of his constitu- tional while an adult was inconsistent practice general police metropolitan in most with the arms in our pp. See discussion on Commonwealth. 16-20. request help police should Leonard’s failure to Nor while in custody protective as a be construed constitutional waiver of the required guarantees Supreme Miranda. Court, The California involving dealing sixteen-year-old minor, with a similar case recently custody is “It fatuous assume observed: that a in minor attorney position an to сaU wiU be assistance. . .”. 375, , People Burton, (1971). v. C. 3d P. 2d expect totally sixteen-year-old unrealistic It to ask for custody. police requirement lawyer” completely Such a while “a certainly severely Miranda mandate clear and “would subverts required by ‘protective devices’ Miranda in restrict cases where only suspects help if call for are minors which is to be privilege of the is the attorney.” invocation mil an for an deemed , Burton, People P. C. 3d 2d 362' refusing
nile’s confession held that by this Court to the access parent, and adult friend boy’s attorney, “tactics interrogation used boy during can- we of the statement which securing challenged A. condone”. Id. at 2d at 746. not from for boys shift the charitable home abrupt but car was geographically slight psycho- to the police Had the and consequently legally signifiсant. logically of the presented but taken advantage opportunity Leonard of his Miranda rights, in the Home to advise been a likelihood of intelli- greater there have would waiver, since Leonard would understanding gent upon experi- able to draw maturity been present. ence the adults authority discussion of majority
The limited law, of case responsi- views principles ignores all and established commentators, police practices, ble a careful scrutiny mandate circum- of which *11 juvenile’s a confession in which is secured and stances for some adult to insure a guidance the need recognize of constitutional rights. waiver proper for determining whether there standard strict of waiver an effective rights has been in v. Zerbst, Johnson U.S. 458, enunciated 304 58 first the Supreme where Court (1938), declared: 1019 S. Ct. an intentional ordinarily relinquishment “A waiver of a known Id. privilege.” or abandonment v. Carnley 1023; Cochran, Ct. at 369 58 S. 464, U.S. 888 884, (1962); S. Ct. Commonwealth v. 272 A. 2d 486, Pa. 877, Anderson, (1971) ; 439 Pa. Singleton, v. 185, 188-89, 266 Commonwealth This standard was applied 2d A. in waivers Miranda v. interrogation in-custody Arizona, supra. clear that it is sustain the record validity
On possible evidence of compelling most a guilt, “the of from this sixteen- was “obtained” confession”, which pleasure year-old unsupervised of accused “at subsequent pro police” only serve to render the would ceedings “empty Only guaranteeing formalities.”6 during rights effective of constitutional waiver interrogation integrity subsequent pro can ceedings preserved. be constitutionally a
The need to
valid
assure
waiver
especially
recognized
been
as
has
acute
the area of
juveniles.
far
As
back
1947 the United States Su
premе
Haley
Ohio,
Court observed
tional defendant’s sub- voluntary, sequent explicitly confession the Court re- boy jected assumption: “. . . that fifteen, with- appreciation would aid of counsel, out a full on the advice and facts of this recоrd he had Id. at of choice.” freedom 68 S. Ct. at 304. imperative This same constitutional was reaffirmed *12 Gallegos Colorado, v. 370 U.S. S. in Ct. 1209 determining that In (1962). confession elicited Arizona, 384 U.S. S. Ct. involuntary was boy from a fourteen-year-old the an adult with be compared said: “He cannot the Court knowledgeable in full his senses possession no He would of his admissions. consequences confes- of his the consequences way knowing what some- to his rights—from advice as sion were without rights—and him those one concerned with securing to the as of more mature judgment without the aid he in which he should take predicament steps or friend relative found A an adult lawyer himself. which could have petitioner protection given advice would have could not. Adult immaturity own his interroga- him on a with unequal footing less put in- adult against some protection tors. Without would not be able to boy know, a 14-year-old equality, had. as he assert, rights let alone such in be would, To this conviction to stand effect, allow him if he had no constitutional Id. rights.” to treat at 1212-13. at 82 S. Ct. 54-55, S. Gault, in Re 387 U.S. Ct. 1428 Again cautioned (1967), special scrutiny Court juvenile of an admission made not receipt “If counsel not for counsel: was present some reason when admission was ob permissible care must be taken to assure that tained, greatest the admission was the sense voluntary, not only it not coerced but also that suggested, was or of ignorance not the product adoles or despair.” (Citations cent fantasy, fright omitted.) at 1458. The Court 87 S. Ct. cited Id. with ap a recommendation President’s Commis proval Enforcement and Administration on Law sion Jus “ in order to assure ‘procedural justice tice that ‘Counsel... necessary it is child,’ appointed of course wherever matter coercive action aas is a
365 without affirmative choice possibility, any requiring ”7 child or parent.’ In whether this know sixteen-year-old determining waived his to should ingly compare counsel we of circumstances this waiver with purported and careful of protection the court explanation value counsel to seek to adults when adults given make an in-court ABA Project waiver counsel. The on Minimum for Standards Criminal Stand Justice, ards to Defense Services Relating Providing (Ap §7.3 Draft proved 1968), provide following directives for achieving waiver of coun in-court sel. “No waiver counsel should be unless accepted is record. writing who had not person If seen a indicates intention to lawyer waive the as sistance counsel, a should lawyer he provided con sult w>iihhim. No waiver should he accepted unless he at had least once awith If lawyer. a waiver conferred the offer should be accepted, renewed at each subse of the quent stage at proceedings which the defendant counsel.” without appears (Emphasis added.) The Court in United States Coleman Supreme v. Alabama, 399 U.S. S. Ct. 1, (1970), acknowledged “[t]he accused on inability indigent his own to realize of a advantages lawyer’s assistance” and went on [the] articulate carefully values of counsel during confrontation”. “any pretrial Surely this accused suf least the same fers at on “inability ... own advantages realize a lawyer’s assistance.” [the] from It must obvious record that the need some adult guidance for at least this sixteen-year- in “deciding” old whether accused waive counsel Gault, U.S. S. quoting Ct. In Rе from Report Commission tbe President’s on Law tlie Enforcement Justice, Challenge “The Administration of Crime in a. Free Society” (1967) 86-87. that of an adult who as certainly imperative “decided”
stands before the court. Once this accused car to counsel to waive his out of the he “let the cat confession was had secured, United 331 U.S. Bayer, States bag”. he had realisti Ct. so 1394, 1398 (1947). doing S. *14 of ability limited the cally effectively professional to more any challenge counsel do than subsequent is the relief validity which confession, precisely en here. The Court must have being Supreme sought or visioned similar factual situations pro flowing protections said: “Without phetically All warning counsel, from.adequate of testi careful erected around the safeguards giving witness, other any whether accused or mony, empty formalities, would become a where procedure a con compelling possible guilt, the most evidence of been obtained at the un fession, already would have Arizona, Miranda v. supervised pleasure police’.” 384 86 from (quoting U.S. S. Ct. 1624 436, 466, 1602, 81 1684, v. U.S. Ct. 1707 Mapp Ohio, S. (1961) J., dissenting) (emphasis added).8 (Harlan, of juveniles other states have held confessions
Many
involun
obtained in the absence
adult
guidance
In
all
New York the courts exclude
confessions
tary.
not in the
juvenile
parents
made
decisions reason that such an
or counsel. These
ap
in In
mandated
Re
constitutionally
Gault,
proach
Appeals in
Court of
United States ex rel.
Third Circuit
Yeager,
(3d
1971),
Loray
F. 2d 1360-61
Cir.
seemed to
v.
indi-
guidance
parent
must have the
a minor
that
adult
cate
warnings are
administered:
“On the other
friend when
prisoner
16-year-old
hand,
not
was
advised of
re-
given
counsel.
the assistance of
He
or to have'
main
no
silent'
parents
opportunity
adult
friends.
consult with
oc-
Had this
decisions,
Miranda and Escobedo
after
con-
resultant
curred
inadmissible.”
have been
fession would
and also
on
supra,
rely
provisions
Family Court
Act
child to
require
be delivered to the court or
detention
“without
facility
taken
being
his first
In
station house”.9 See
Re William
A.D.
29L.,
2d 182, 287 N.Y.S. 2d
In
(1968)
the Matter
;
Richard
29 A.D.
W.,
2d
The need whether to decide surrender Mi their upon called universally has been recognized by leading randa rights Dealing specifically with the issue of commentators.12 interviewed, being parents the child and his “Before should legal present counsel to have and to refuse informed Special- questions so if he should decide.” Standards for answer Children, Dealing prepared by Bureau, with Children’s ized Courts *16 Health, Education, Department coopera- and. Welfare in U. S. and Parole Probation Association and National the Na- tion with Judges, (1954) Court 38. Juvenile Counsel tional interpreted requiring In Re Gault commentators Most juvenile present informed of parent counsel his con- or right right See, e.g., silent and to remain counsel. stitutional right whether minor can, himself, waive silence and counsel, the Model Rules Juve promulgated Judges nile Courts, the Council Delinquency the National Council on Crime and state unequivocally: extrajudicial “No statement the child peace to a officer or officer court shall be admitted into evidence unless it was made parent guardian child’s or or counsel. No such state person ment shall be into admitted evidence unless the offеring the statement demonstrates to the satisfaction making of the court before that, the child statement, parents intelligently compre and his were informed and any hended that he need not amake statement, might proceeding, statement made be used in a court and that he had a to consult with counsel before during making or of a statement.”13 The ABA Pro ject on Minimum Standards for Criminal Justice, Relating Providing Standards pro Defense Services : vides “No waiver should be found to have been made appears
where it that the accused is unable to make an intelligent understanding choice because of. his age, mental experience, conditions, education, the nature complexity case (Emphasis other factors.” Altman, The Effect the Miranda Case on Confessions Court, 79, (1967) ; 5 Am. Crim. L. Ketcham, Q. Juvenile Guide Revolutionary Requirements lines from Gault: Reappraisal, 1700, ; (1967) Paulsen, Va. L. Rev. The Constitutional Court, Domestication of the Juvenile 250; 1967 S. Ct. Rev. Welch, Kent v. United States and In Re Gault: Two Decisions in Theory, (1967) of a ; Search 19 Hast. L.J. Comment, 42-43 Criminal Offenders Juvenile Court: More Brickbats Proposal, 114 U. Pa. L. Rev. (1966) Note, Another ; 1181-84 Delinquents: Police, Juvenile State Courts and Individual Justice, Harv. L. Rev. ized 780-81 Judges of 13Council of the National Council on Crime and Delinquency, Courts, Model Rules for Juvenile Rule 25 Evidence (1969) at 53. *17 con its heretofore expressed This has added.)14 Court friend or adult parent, cern the absence of counsel, over of constitu minor’s waiver whether determining In Common and intelligent. was knowing tional rights 271 A. 2d 441 Pa. Darden, wealth v. that whether ascertaining acknowledged we (1970), aware of his constitutional boy sixteen-year-old more exacting “. . cannot be judged by . he “. . . very of maturity” indulged standards by of the disclosed careful all circumstances study more in Commonwealth . . .” point the record. Even A. (1970), 2d 744 involv Harmon, 440 Pa. of an eighteen- a confession admissibility ing period interrogation boy. During year-old from mother, attorney defendant’s denied police from Defender’s and an adult friend Office, the Public to the of Human access Relations, the Commission disclosed “the use tac that the record Noting youth. statement that challenged securing in the tics condone” this Court affirmed unanimously cannot we confession was court’s involun ruling trial A. 746. 2d at at 199, Id. tary. our constitutional mandate violating
In addition to our Court, the majority’s decisions deci earlier with existing police practices conflicts also sion areas the Commonwealth. The police metropolitan by their instructed official opеrations are generally of juveniles the questioning defer until their manuals are See present. counsel Juvenile Court parents Juvenile Court Commission, Handbook, p. v Judge’s forward 1970 edition 1970). *18 intelligent rights. . and waiver of such . . Unless such warnings intelligently given are and understandingly parents, no waived the child Ms against statement or can be him in an admission used adversary proceeding.” (Emphasis added.) Similarly Delinquency, the Police Guidance Manual on Juvenile prepared by Stephen Professors Louis B. Schwartz and University Pennsylvania B. Goldstein of the of Law Philadelphia for School use Police Force and metropolitan police generally, as a model for forces juvenile gets protection “. advises: . . more in some ways against police questioning gets than an adult . . . youngster’s questions may ‘consent’ answer not be enough legalize young if [sic] he is too to realize consequences, parents the risk and or if lawyer his or present. lawyer’s are not Even offer of a services and warning may against formal that answers be used him may enough ignorant not be the case young of an Operational child.”15 accord is Standard Proce for dure Juvenile Division the Erie Police: “No state- Guidance Manual No. Delinquency, Police Juvenile §10 Questioning 20-21. The Juveniles at Juvenile Aid Division Investi- Philadelphia gators Department of the provides: Manual Police guardians should or possible “Parents notified as soon as every custody. a child is taken into case when . . .” In similiar Chapter language p. Harrisburg VIII of 21 of Depart- Police relating policy procedures ment Manual interroga- requires: juveniles “If the eighteen child is less years tion of than age, . . shall bе parents . elicited . no statement . . . unless . . guardian been informed given first has . . . and his has their (Emphasis permission such interview.” explicit for in original.) from one his par- ment he taken a child unless shall matter of the ents or has first been informed guardians and has given on which the is to take place interview for such interview.” permission specific Police and the Federal State Pennesylvania concern Bureau of have exhibited Investigation equal ini “Prior to juveniles: for the constitutional in officer shall investigating ating interview, Con form the child the child’s parents and/or to remain silent and his right stitutional or retained. shall be This counsel, appointed procedure of the child and regardless intelligence followed or the of the absence parents regardless for the The Pitts interview.”16 parental permission are under involved Police, case, operating burgh the Escobedo and manual that predates opin Police Manual Regulations See Juve Handling ions. Bureau of Penn Police, Pittsburgh Pittsburgh, niles, June 1962. Even in such a effective dated sylvania, *19 manual instructs to police notify publication of an minor or arrested as soon guardians the parents Presumably rationale of such a re as possible. minor to is consult permit with a quirement adult before and experienced making critical friendly be recognized must that such It decisions. manuals are and pragmatic significance. .They show persuasive and advisors are administrators themselves police for abuse if a juvenile of the potentials is un aware or adult friend parent, counsel, aided interro- 16 Community Pennsylvania Police Manual, State Eelations Academy’s FBI (1969), 24. The National Chapter VII-6 manual suggests during interrogation the administration on warnings “counsel be considered an necessity absolute “highly younger” years desirable” for those older juvenile. as a FBI Academy, classified National stiU individual 128, Miranda Rule at Interrogation, (1968). Police gated by police. convincingly refute The manuals any apprehensions required presence of adults that the any way impinge upon responsible in or would frustrate existing practices. reached The result majority present police procedures ques- in contradicts juveniles. tioning attributing capacity to Leonard Moses the rights guidance, in
waive his the absence adult majority ignores previous judgments of this Court long policy and the established this Commonwealth precluding making legally binding from minors de example, For cisions. minors in the absence of consent by parents guardians, permitted: are not to consent necessity to medical treatment unless medical dictates, February Act P. L. 19, §§1-5, P.S. give §§10101-105; Act of blood, December 9, 1989, marriage P. L. 35 P.S. 333, §1, §10001; to obtain a August Act of license, P. L. 1344, §5, §§1-5(c); compromise, 48 P.S. amended, settle, pending Pennsylvania discontinue actions, Rules 2039(a). long Civil Procedure it has Furthermore, Pennsylvania been the law that minors are not bound they except contracts enter for necessities. Schmuck Naugle, er v. 426 Pa. 203, 205, 231 A. 2d 121, 123 (1967); v. Bell, Pankas 413 Pa. 494, 498, 198 A. 2d (1964) O’Leary ; Estate, Pa. 42 A. 2d majority’s ruling given Under the a minor legal protections making more decisions involving rights in law majority civil matters than the ac waiving minor cords this in liberty. volving life and Reviewing applying, record and as we must, *20 Haley, mandates of Gallegos, constitutional controlling principles and Gault, and of our deci- Harmon, and Darden must sions concluded that warnings sixteen-year-old administered de- fendant were that inadequate his under “waiver”, these failed meet circumstances, of Johnson v. standards Zerbst and the of this decisions Court, Leonard a supra. Moses was in difficult position “which can early overawe overwhelm lad During teens.” the “critical hours of he questioning” without “counsel friend”. Haley Ohio, 68 S. at 304. one “to Ct. No stood guard U.S. far no went so farther, make sure to. it that short where they stopped point to see Responsible the victim of coercion”. Id. he became throughout the Common and other authorities juveniles for have many years concerned with wealth “predicament” in such a should youth realized . . friend, adult or counsel to insure “. parent, . . of . freedom of choice”. a full appreciation [his] S. at 304. as in Haley Id. at 68 Ct. and Gal Here, the fundamental con concerning no such advice legos, was made available to this six protections stitutional He was not to make youth. equipped teen-year-old decision alone and waiver was legally this critical measured the standards enumer insufficient ated above. sentence and judgment grant
I reverse would a new trial. in this joins O’Bkien dissenting
Mr. opinion. Justice v. Butler, Appellant. Commonwealth notes (Supp. promulgated standards Commission Project Minimum Justice, on Standards ABA Criminal Providing Services, Relating Defense §7.2 Waiver Standards 1968) at 63. (Approved Draft po judges, probation been “. . officers, used . on interro social . . .” The section lice, workers. great gation care inter “. . . alia, minors advises, to ascertain that should exercised fully parents comprehend con the child’s child rights in order that there be an effectual stitutional