Com. v. Smith

• Citation: 472 Pa. 492,372 A.2d 797
• Parties: COMMONWEALTH of Pennsylvania v. Barry SMITH Appellant (two cases).
• Decision Date: 28 April 1977
• Court: Pennsylvania Supreme Court

Page 797

372 A.2d 797

472 Pa. 492

COMMONWEALTH of Pennsylvania v. Barry SMITH Appellant (two cases).

Supreme Court of Pennsylvania.

Argued Jan. 10, 1977.

Decided April 28, 1977.

[472 Pa. 494] Victor J. DiNubile, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

NIX, Justice.

This appeal again raises the troublesome issue as to when an accused under the age of 18 years may effectively waive his constitutional rights prior to custodial interrogation. ¹ For the reasons set forth hereinafter we are constrained to reverse the judgments of sentence and award the grant of a new trial.

On November 7, 1974, appellant, Barry Smith, a 17-year-old youth, fired six shots in the direction of another youth who was a member of a rival gang. The bullets missed the intended victim and struck Crystal Loney and Batina Brooks, two innocent bystanders, who were in the vicinity at the time of the shooting. Crystal, who was age 14 at the time of the shooting, died from a gunshot wound to the head several hours later. Although Batina was shot in the arm and head she fortunately recovered. Appellant was subsequently arrested, tried and convicted of murder of the first degree, possession of an instrument of crime, and carrying a firearm on public streets. Following a denial of post-trial motions, Smith was sentenced to life imprisonment under the murder indictment and received a sentence of one to two years for each of the weapon charges, both to run concurrently with the life sentence. This direct appeal followed. ²

Appellant argues that the inculpatory statement elicited during custodial interrogation following his arrest should have been suppressed because the record does not reflect an effective waiver of his Miranda ³ rights. After an analysis of this Court's recent cases relating to juvenile waivers prior to custodial interrogation, the trial judge concluded:

Under the guidelines of state and federal appellate cases, the likelihood that a young defendant did not understand the import and consequences of his confession does not warrant the exclusion of the statement where all the proprieties have been observed. This Court has grave misgivings that Barry Smith or any other juvenile of similar age, I.Q. and background, could knowingly, intelligently and competently waive his constitutional rights. However, all of the formal due process requirements were observed. Under the law in Pennsylvania at the time of this writing, there is no authority to exclude the statement.' (Emphasis added).

Before turning to the merits of this appeal, we deem it necessary to comment upon the above-quoted observation of the trial court since, in our judgment, it touches upon the heart of the controlling considerations involving waiver of substantial constitutional rights. In our view, due process requires that a waiver by a youthful offender is effectuated only when it has been shown that the minor Comprehended the full significance of the panoply of rights that protects him during custodial interrogation. We have insisted that the Commonwealth bear the burden of proving a knowing waiver. Commonwealth v. Hailey, --- Pa. ---, 368 A.2d 1261 (filed January 28, 1977); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1976); Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974). In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court in setting forth the required procedures for police interrogation of suspects warned:

The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.

Id. at 476, 86 S.Ct. at 1629. ⁴

We cannot accept the implication of the trial judge's statement, that the inquiry as to the effectiveness of the waiver of a minor is satisfied because the formel prerequisites have been met, as long as there is reason to question whether the minor, In fact, has comprehended his situation.

We have devoted special attention to the observation of the learned trial judge because her concern capsulizes that which motivated a majority of this Court to seek a technique which would avoid the warning of a juvenile becoming a mere ritual wherein the effect of actual comprehension is ignored. Because of the unique disadvantage in the custodial interrogation process of the youthful accused due to his immaturity, ⁵ it was recognized that merely a consideration of the fact of youth in the totality of the circumstances formulation, Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971); Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970); Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969), was inadequate to insure that a juvenile's waiver was indeed a knowing one.

In a series of our decisions beginning with Commonwealth v. Roane, supra, ⁶ 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. ⁷ 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. See, Commonwealth v. Starkes, supra.

Reviewing the facts of the instant appeal, it is apparent that this juvenile did not receive the requisite protections envisioned in our recent case law. The testimony of the suppression hearing established that within hours of the incident appellant became a suspect in the shooting. The police arrived at appellant's home at 4:15 A.M. on November 8, 1974, and were admitted to the premises by appellant's father, Jack Miller. The police and Miller then proceeded to an upstairs bedroom where appellant was awakened and told to dress. At this time Smith was taken into custody and read the first side of the police interrogation card which contained the Miranda warnings, but there was no inquiry whether the suspect or his father understood that which had been read to him. Smith was taken downstairs and the police informed Mr. Miller that he could accompany his son to the Police Administration Building, but the father declined to do so. ⁸

Appellant arrived at police headquarters and was placed in an interrogation room until 5:30 A.M. when he was again warned. This time the card was read in its entirety and the minor gave monosyllabic responses to the questions which were posed. Smith then proceeded to participate in the interrogation during which he made inculpatory statements which were later reduced to writing. The interviews were concluded by 7:50 A.M.

The Commonwealth contends that because the parent heard the warnings but declined to accompany his son to the police station for questioning, the requirement of providing the accused with the 'opportunity for adult consulation's had been met. We disagree.

In Roane, we first articulated the concept that an attempted waiver of the Fifth and Sixth Amendment rights during custodial interrogation will not be considered as being effective absent a showing that the minor 'had access to the advice of a parent, attorney or other adult who was primarily interested in his welfare.' Id., 459 Pa. at 394, 329 A.2d at 288. It was never the intention to exclude the requirement of interest simply because the consulting adult was a parent of the minor. ⁹ To the contrary, it was assumed that the relationship would assure the requisite concern for the welfare of the minor. However, that assumption does not justify the creation of an irrebuttalbe presumption of interest by a parent. Where, as here, the disinterest of the parent is graphically demonstrated, it is clear that Mr. Miller was not the interested adult envisioned in the rule. If the adult is one who is not concerned with the interest of the minor, the protection sought to be afforded is illusory and the procedure fails to accomplish its purpose of offsetting the disadvantage occasioned by the immaturity.

Not only does Mr. Miller fail to qualify as an adult interested in the welfare of Barry, he also cannot be said, on this record, to have been an informed adult. In Starkes, we stated that the record must establish that the consulting adult was aware of the rights possessed by a person in the situation of the accused. If the available adult was as unaware as the suspect himself, then obviously the procedure would be meaningless.

Where an informed adult is present the inequality of the position of the accused and police is to some extent neutralized and due process satisfied. However, where the adult is ignorant of the constitutional rights that surround a suspect in a criminal case and exerts his or her influence upon the minor in reaching the decision, it is clear that due process is offended. An uninformed adult present during custodial interrogation presents an even greater...