concurring.
I concur with the majority in overruling the paternalistic and unnecessarily protective per se rule promulgated in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). However, I write separately because I cannot agree with the majority’s announced adoption of a so-called “presumption” to replace the rejected McCutchen per se rule.
To say that we now create a presumption that a juvenile is incompetent to waive his constitutional rights without first having an opportunity for consultation with an interested and informed adult, but that this newly created presumption shall be rebutted by evidence which clearly demonstrates a knowing, intelligent and voluntary waiver by the minor is to confuse and muddle the analysis. Strictly speaking, a presumption is a procedural device which not only permits an inference of the presumed fact, but also operates to shift the burden of producing evidence to the party upon whom the burden does not normally rest. See: McCormick’s Handbook of the Law of Evidence § 342 (2nd Ed. E. Cleary, 1972). Also see: Commonwealth v. DiFrancesco, 458 Pa. 188, 193 n. 3, 329 A.2d 204, 208 n. 3 (1974). If what is characterized as a presumption merely places the burden of producing evidence upon the party who normally has that burden, then calling this procedural step a presumption will have a tendency to create confusion. The Commonwealth always has the burden of producing evidence to show that a juvenile made a knowing, intelligent and voluntary waiver of his constitutional rights. The so-called presumption an*226nounced by the majority is not a presumption at all since it merely establishes that the Commonwealth has its usual burden of proving a knowing, intelligent and voluntary waiver on the part of a juvenile.
The per se rule which today we reject sacrifices too much of the interests of justice. Experience favors a more flexible approach which will reflect a concern for the interests of society as well as the rights of juvenile defendants. Commonwealth v. Veltre, 492 Pa. at 243, 424 A.2d 486 (Larsen, J., Opinion is Support of Affirmance). See: Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) (Larsen, J., Opinion in Support of Reversal).
In overruling the per se rule of McCutchen, I would hold that a totality of circumstances analysis must be applied in determining the validity of a minor’s waiver of rights. Among the circumstances which are part of the total circumstances to be considered are the minor’s age and experience, and the juvenile’s need and opportunity to consult with an interested and informed adult.
Applying the totality of circumstances analysis to the present case, the appellee Christmas was four months shy of eighteen years of age. He had extensive experience with the criminal judicial system. Appellee had been arrested at least sixteen times previous to his arrest in this case. His record included commitments to two separate youth detention facilities as well as serving “intensive” probation. The evidence clearly demonstrates that the appellee was not a naive, inexperienced youth who suddenly found himself caught up in a legal situation which he did not understand and as a result needed the advice of an interested adult. On the contrary, appellee as a veteran arrestee and seasoned delinquent was probably in less need of the assistance of an interested adult than a first offender who happened to be born four months and one day earlier than appellee. Nonetheless, he did take advantage of the opportunity to confer with his father, an experienced police officer, before being questioned by the authorities.
*227Additionally, the evidence shows that appellee’s physical condition was normal and no one struck or beat him. There were no threats or promises made and appellee was not subjected to psychological abuse. His reasonable requests were granted such as use of the toilet facilities when the need arose. Further, during the span when appellee was informed of his rights and waived them, and while giving his statement, appellee’s father was ever present.
In applying the totality of circumstances test to the evidence in this case, it is apparent that the appellee knowingly and willingly waived his rights to stand silent, and to the assistance of counsel, and freely gave the statement introduced against him.
I, therefore, concur with the majority in reversing the order of the Superior Court and reinstating the judgment of sentence.
McDERMOTT, j., joins in this concurring opinion.