In the Interest of Parks

HOFFMAN, Judge,

dissenting:

After carefully reviewing the record in this case, I conclude that I must dissent from the majority’s conclusion that the Commonwealth met its burden of proving that appellant’s confessions were made knowingly, intelligently, and voluntarily.

On January 23, 1986, appellant was arrested and charged with burglary. He was given Miranda warnings and then transported to the home of Lenora Figueroa, whom appellant had indicated was his mother. After learning that Ms. Figueroa was not at home, the police telephoned her at work. She told police that she was not appellant’s mother, but rather his aunt.1 N.T. March 20,1986 at 37. The police officer informed Ms. Figueroa of appellant’s rights and she gave the officer permission to question him. Id. at 38. Appellant did not speak with Ms. Figueroa. Two police officers then drove appellant through the neighborhood while appellant pointed out additional houses that he had burglarized. Appellant was returned to the police station where he signed a written statement detailing what he had earlier told police. Later that same evening, two other police officers drove appellant through the neighborhood while he pointed out more houses that he had burglarized. Again, appellant signed a written statement detailing his involvement in the burglaries. He then was turned over to the custody of the Youth Study Center.

On January 28, 1986, appellant was arrested on additional burglary charges. He was given Miranda warnings and then driven to Ms. Figueroa’s home. The police again telephoned Ms. Figueroa at work and she gave the officer permission to question appellant. Appellant did not speak to Ms. Figueroa. Two police officers then drove appellant through the neighborhood and appellant pointed out additional homes he had burglarized. He then signed another *361written statement detailing his involvement in the additional burglaries.

Appellant filed a motion to suppress his statements to the police and, following a hearing, the motion was denied. He was adjudicated delinquent on eleven charges of burglary following a hearing at which evidence was entered by stipulation. Appellant was committed to two years at Corn-wells Heights Security Unit and this appeal followed.

Appellant contends that the lower court erred in denying his motion to suppress his statements because the Commonwealth failed to meet its burden of proof that the confessions were the product of a knowing, intelligent, and voluntary waiver of his Miranda rights. I agree.

At a suppression hearing, the Commonwealth bears the burden of proving by a preponderance of the evidence that the challenged evidence was not obtained in violation of the accused’s rights. Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 459 n. 1, 495 A.2d 554, 555 n. 1 (1985); Commonwealth v. Bonasorte, 337 Pa.Superior Ct. 332, 344, 486 A.2d 1361, 1368 (1984). See also Pa.R.Crim.P. 323(h). “If the suppression motion has been denied, the appellate court ‘will consider only the evidence of the prosecutor’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ ” Commonwealth v. Otto, supra (quoting Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977)).

In Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), our Supreme Court announced a per se rule requiring that a juvenile have an opportunity to consult with an interested adult before waiving his or her Miranda rights. The Court overruled McCutchen in Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983), and reduced the per se requirement to a rebuttable presumption that a juvenile was incompetent to waive his or her constitutional rights without first having an opportunity to consult with an interested adult. Id., 502 Pa. at 223, 465 A.2d at 992. In Commonwealth v. Williams, 504 Pa. 511, 475 A.2d *3621283 (1984), our Supreme Court overruled Christmas and held that a juvenile need not consult with an interested adult prior to making a confession. Instead, the Court held that:

The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of the circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.

Commonwealth v. Williams, supra, 504 Pa. at 521, 475 A.2d at 1288. Although the per se McCutchen rule is no longer the law in Pennsylvania, “the absence of the juvenile’s right to confer with an interested adult will be viewed as an important factor among the totality of circumstances in determining if the waiver was voluntary.” Commonwealth v. Bebout, 335 Pa.Superior Ct. 275, 279-80, 484 A.2d 130, 132 (1984).

Applying a totality of the circumstances analysis, I find a dearth of evidence to support the conclusion that the Commonwealth proved that appellant's statement was voluntary. First, I note that appellant was not given an opportunity to consult with an interested adult. Ms. Figueroa was not present at any of the interrogations. Additionally, appellant was never given the opportunity to consult with her. While the lower court found that Ms. Figueroa gave the police her permission to question appellant, Lower Court Opinion at 23,1 would conclude that her mere permission to question appellant is insufficient to render his confession voluntary. The presence of an interested adult has been deemed important by our courts not because the adult must give the police permission, but rather because it gives the juvenile an opportunity, after the adult has been ap*363prised of the juvenile’s rights and the circumstances of the arrest, to consult with the adult and receive advice concerning the waiver of his or her rights. The interested adult may not unilaterally waive those rights for the juvenile. Here, both the police officers and Ms. Figueroa testified that she only spoke to the police and never spoke to appellant. N.T. March 20, 1986 at 56, 98, 143.

The lower court concluded, however, that the fact that appellant never spoke with Ms. Figueroa was irrelevant because “he did have the ‘opportunity’ to speak with her but chose not to.” Lower Court Opinion at 23. I disagree. The testimony at the suppression hearing does not support the conclusion that appellant was given the opportunity to speak with Ms. Figueroa. Officer O’Connor testified that on January 23, 1986, the telephone connection was broken before his conversation with Ms. Figueroa was completed and that he did not try to call her back. N.T. March 20, 1986 at 56. Officer Maahs testified that on January 28, 1986, appellant replied “Fine, let’s go” when told that Ms. Figueroa had given the officer permission to take a statement from him. Id. at 121. It is apparent, therefore, that appellant was never asked if he wished to speak with Ms. Figueroa. Thus, it follows that he never made a choice not to speak with her.

The effect of the lower court’s conclusion that appellant’s confession was voluntary because he did not request to speak with Ms. Figueroa is to take away from the police the burden of protecting a juvenile’s rights and to place an affirmative burden on the juvenile to demand that the police give him or her the opportunity to consult with an interested adult. I cannot tolerate this result. The very purpose of allowing a juvenile the opportunity to speak with an interested adult is that a juvenile, because of his or her age, may not be able to comprehend the gravity of the situation and make a decision regarding his or her rights that would be in his or her best interests. For this reason, it would be incongruous for this Court to assume that the same juvenile who may be too young to waive his or her rights is mature *364enough to demand the counsel of an adult to protect those rights. Accordingly, because I do not believe a juvenile should be required to be so forthright, I would conclude that appellant was not given the opportunity to consult with an interested adult.2

Although absence of an opportunity to consult with an interested adult is not conclusive proof that a juvenile’s confession was made voluntarily, see Commonwealth v. Williams, supra, the Commonwealth has failed to present any evidence of other Williams factors that would indicate that appellant’s confessions were voluntary. No formal evidence of appellant’s age or prior record was introduced. Moreover, no evidence was introduced regarding appellant’s education level, reading ability, or general intelligence. Although the lower court acknowledged that appellant’s education level is uncertain, it concluded that “it is at least clear that [appellant] was able to read since he read his statement in front of the police officer.” Lower Court Opinion at 19 (citing N.T. March 20, 1986 at 41). At best, the testimony of the police officer indicates that it appeared that appellant was able to read his statement. Appellant did not read his statement aloud to the police and it does not appear that any one asked appellant if he could read before giving him his statement to read and sign.

The lower court also concluded that “[c]ertainly, the [appellant’s] physical condition was normal at the time of his arrest and detention. Nor was the [appellant] subjected *365to physical or psychological abuse.” Lower Court Opinion at 18. The lower court fails to cite, and I am unable to find, any evidence in the record that would support the conclusion that appellant was in good physical condition at the time of arrest and detention. Moreover, there was no evidence regarding whether appellant had been physically or psychologically abused. Because the Commonwealth bears the burden of proof at all time during the suppression hearing, see Commonwealth v. Otto, supra; Commonwealth v. Bonasorte, supra, the absence of evidence that appellant was in poor physical condition or was not abused cannot automatically support the conclusion that appellant was in good physical condition or that he was not abused in any way. Furthermore, the Commonwealth failed to present evidence showing that appellant was free from the influence of alcohol or drugs at the time he made his statements. Accordingly, I would conclude that the lower court abused its discretion when it denied appellant’s suppression motion because the Commonwealth failed to meet its burden of proving that appellant made a knowing, intelligent, and voluntary waiver of his Miranda rights under the totality of the circumstances test enunciated in Commonwealth v. Williams, supra.

. Testimony at the suppression hearing revealed that Ms. Figueroa was not related to appellant nor was she his legal guardian. Ms. Figueroa testified that appellant was her son’s friend and that he spent the night at her house and had meals there frequently for several months prior to his arrest. N.T. March 20, 1986 at 145-49.

. The lower court also concludes that the police procedure was proper in this case because "telephonic participation has been approved” by our courts in Commonwealth v. Webster, 466 Pa. 314, 327, 353 A.2d 372, 378 (1975) (although juvenile was given chance to talk to his mother by telephone, statement was suppressed because no evidence that mother was advised of son's Miranda rights); and Commonwealth v. Hill, 305 Pa.Superior Ct. 560, 562, 451 A.2d 1019, 1019 (1982) (juvenile confession was voluntary because he had opportunity to speak with his mother by telephone). Lower Court Opinion at 22-23. These cases stand for the proposition that the actual physical presence of an interested adult is not required provided the juvenile has some meaningful opportunity to consult with the adult — in these cases, by telephone. These cases do not apply in the instant case because it is clear that appellant never spoke with Ms. Figueroa by telephone or otherwise.